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,THE  CONSTITUTI0T^;:.OT 
THE  UNITED  STATES. 

ITS   SOURCES   AND   ITS 
APPLICATION 


BY 

THOMAS  JAMES  NORTON 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

1922 


Copyright,  ig22<, 
By  Little,  Brown,  and  Company. 


All  rights  reserved 
Published  June,  1922 


Printed  in  the  United  States  op  America 


CONSTITUTION  OF  THE  UNITED 
STATES  OF  AMERICA 

Adopted  July  26,  1788 
In  Effect  March  4,  1789 

THE  PREAMBLE 

WE  THE  PEOPLE  of  the  United  States,^ 

^  It  is  important  to  notice  that  this  is  a  government  of 
the  people,  not  of  the  States.  Under  the  Articles  of  Con- 
federation, in  effect  as  our  firsts  form  of  government  from 
1781  to  1789,  the  States  as  political  entities,  and  not  the 
people,  entered  into  *'a  firm  league  of  friendship",  each 
State  retaining  ^'its  sovereignty,  freedom  and  independ- 
ence." The  new  Constitution  brought  in  a  new  Nation, 
deriving  its  *'  just  powers  from  the  consent^of  the  governed." 

"The  people,  the  highest  authority  known  to  our  sys- 
tem," said  President  Monroe,  *'from  whom  all  our  institu- 
tions spring  and  on  whom  they  depend,  formed  it." 

*'Its  language,  'We  the  people,'  is  the  institution  of 
one  great  consolidated  National  government  of  the  people 
of  all  the  States,  instead  of  a  government  by  compact 
with  the  States  for  its  agents,"  exclaimed  Patrick  Henry 
in  the  Virginia  ratifying  convention  while  leading  opposi- 
tion to  its  adoption.  ''The  people  gave  the  [Constitu- 
tional] Convention  no  power  to  use  their  name."  Some 
States  restricted  the  authority  of  their  delegates  to  re- 
vising th«  Articles  ->'  Confederation.  It  was  clauned  that 
tlie  castfig  aside  of  .the  Articles  of  Confederation  (which 


2        *  >'  Constihttibh''  of  the  United  States 

could  be  aTtered' or  amended  only  by  the  concurrence  of 
every  State)  for  a  constitution  to  become  efifective  when 
adopted  by  nine  of  the  thirteen  States  was  revolutionary. 
Revision  only  was  uppermost  in  the  minds  of  many.  On 
February  21,  1787,  the  Congress  existing  under  the  Arti- 
•  cles  called  a  convention  ''for  the  sole  and  express  purpose 

^  of  revising  the  Articles  of  Confederation  and  reporting  to 
Congress  and  the  several  legislatures  such  alterations  and 
provisions  therein  as  shall,  when  agreed  to  in  Congress 
and  confirmed  by  the  States,  render  the  federal  Constitu- 
tion adequate  to  the  exigencies  of  government  and  the 

^^preservation  of  the  Union."  But  it  was  the  belief  of  the 
Constitutional  Convention  that  as  the  new  instrument  was 
to  go  to  the  people  for  ratification  or  rejection,  the  objec- 
tions stated  by  Henry  and  others  were  really  unim- 
portant. 

in  Order  to  form  a  more  perfect  Union,^ 

2  Meaning  "a  more  perfect  union"  than  had  been 
achieved  by  the  Articles  of  Confederation. 

"In  the  efficacy  and  permanency  of  your  Union,"  wrote 
Washington  in  his  Farewell  Address,  ^'a  government  for 
the  whole  is  indispensable.  ...  Sensible  of  this  momen- 
tous truth  you  have  improved  upon  your  first  essay  [the 
Articles  of  Confederation]  by  the  adoption  of  a  Constitu- 
tion of  government  better  calculated  than  your  former  for 
an  intimate  Union  and  for  the  efficacious  management  of 
your  common  concerns." 

The  Union,  made  ''more  perfect"  by  the  Constitution, 
was  nevertheless  in  later  times  said  to  be  dissoluble  at  the 
pleasure  of  any  State  that  might  desire  to  secede.  In  his 
Farewell  Address  (1796)  Washington  had  called  upon  the 
people  "indignantly"  to  frown  "upon  the  first  dawning  of 
every  attempt  to  alienate  any  portion  of  our  country  from 
the  rest  or  to  enfeeble  the  sacred  ties  which  now  link  to- 
gether the  various  parts."    To  put  the  question  beyond 


Its  Sources  and  Application       *  3 

controversy  it  required  a  four-year  Civil  War,  after  the 
secession  of  the  southern  States,  beginning  with  that  of 
South  Carohna  in  December,  i860,  following  the  election 
of  Abraham  Lincoln  to  the  Presidency  in  the  preceding 
month. 

In  a  great  debate  in  the  Senate  between  Daniel  Webster* 
of  Massachusetts  and  J^hn  C.  Calhoun  of  South  Carolina, 
the   former   contended^ -Ihat   the   National    Government, 
through  its  Suprgne  Court,  is  the  ultimate  expounder  of 
its  own  powers,  [while  the  latter  stood  for  what  was  known 
as  the  doctrine  of  States'  Rights  and  argued  for  the  right  I 
of  the  individual   State,  under  its  reserved   sovereignty! 
(Note   163),   to   determine  such  questions  for  itself,   as  j 
South  Carohna  had  done  (1832)  by  an  ordinance  declaring 
njilJ  a  tariff  law  of  Congress.  \  Secession,  he  said,  was  the 
State's  remedy  of  last  resorl/)  Of  Calhoun's  theory,  and 
of  the  historic  facts  with  which  it  assumed  to  deal.  Presi- 
dent Lincoln  said,  in  a  message  (July  4,  1861)  to  a  special 
session  of  Congress  called  to  prepare  for  the  Civil  War : 

"The  States  have  their  status  in  the  Union,  and  they./ 
have  no  other  legal  status.  If  they  break  from  this,  they  ' 
can  only  do  so  against  law  and  by  revolution.  The  Union, 
and  not  themselves  separately,  procured  their  independ- 
ence and  their  liberty.  By  conquest  or  purchase  the  Union 
gave  each  of  them  whatever  of  independence  and  Kberty 
it  has.  The  Union  is  older  than  any  of  the  States,  and, 
in  fact,  it  created  them  as  States." 

The  citizen  was  not,  under  the  theory  of  States'  Rights, 
in  contact  with  the  National  Government.  He  owed  alle- 
giance to  his  State,  and  the  State,  in  turn,  dealt  with  the 
Nation.  After  the  Civil  War  the  Fourteenth  Amendment 
set  that  theory  aside  by  declaring:  "All  persons  born  or 
naturaHzed  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside."  Every  citizen  now  owes  an 
allegiance  to  the  Nation  as  well  as  to  the  State. 


4  '  Constitution  of  the  United  States 

It  is  interesting  to  notice  with  what  singular  clearness 
James  Wilson  of  Pennsylvania,  a  scholar  from  Edinburgh, 
laid  down  in  the  Constitutional  Convention  the  doctrine 
which  was,  eighty  years  later,  removed  from  debate  by 
the  Fourteenth  Amendment  (Note  171),  the  question  under 
discussion  being  whether  the  State  or  the  people  should  be 
represented  in  the  Senate : 

"A  citizen  of  America  is  a  citizen  of  the  general  govern- 
ment, and  is  a  citizen  of  the  particular  State  in  which  he 
may  reside.  ...  In  forming  the  general  government  we 
must  forego  our  loc^l  habits  and  attachments,  lay  aside 
our  State  connections,  and  act  for  the  general  good  of  the 
whole.  The  general  government  is  not  an  assemblage  of 
States,  but  of  individuals. " 

Profiting  by  the  experience  of  our  country,  the  United 
States  of  Brazil,  which  was  established  in  1890,  after  the 
overthrow  of  a  monarchy,  carefully  provided,  in  a  consti- 
tution closely  copying  the  fundamentals  of  ours,  for  a  *' per- 
petual and  indissoluble  union  between  former  provinces 
into  the  United  States  of  Brazil."  And  in  1900,  when  the 
various  provinces  of  Australia  were  united  as  the  Common- 
wealth of  AustraHa,  the  Constitution,  also  closely  following 
ours  and  adopting  our  terms,  *' State,"  ^' House  of  Repre- 
sentatives," and  "Senate",  provided  for  an  ^^indissoluble 
Federal  Commonwealth." 

establish  Justice,  insure   domestic  Tranquillity,  pro- 
vide for  the  common  defence,^ 

^  Under  the  Articles  of  Confederation  the  expenses  of  the 
common  defence  were  to  *^be  defrayed  out  of  a  common 
treasury"  supplied  ''by  the  authority  and  direction 
of  the  legislatures  of  the  several  States."  The  Nation 
itself  had  no  power  of  self-defence  in  the  raising  of  money 
and  in  some  other  important  respects.  It  turned  out  in 
practice  that  some  of  the  States  signally  failed  in  emergen- 
cies to  make  thdr  contributions  ^o  the  ''common  treas- 


Its  Sources  and  Application 


ury."  Indeed,  only  New  York  and  Pennsylvania  paid 
their  full  proportion  of  the  costs  of  the  Revolution.  One 
State,  which  had  suffered  none  from  the  ravages  of  war, 
contributed  nothing.  But  (to  illustrate  the  difference  be- 
tween a  league  of  States  and  a  Nation)  when  the  United 
States  entered  the  World  War  in  191 7  the  Congress 
promptly  exerted  its  power  under  the  Constitution  and 
raised  by  the  issue  of  Liberty  Bonds,  by  income  taxes,  and 
by  other  means  all  the  money  that  it  needed  for  "the 
common  defence."  The  States  as  such  were  not  concerned 
except  in  providing  miHtia,  a  subject  to  be  noticed  later.  ^So 
it  had  been  in  the  War  of  181 2,  in  the  Mexican  War,  in  the 
Civil  War,  and  in  the  War  with  Spain.  The  Articles  of 
Confederation  were  wholly  deficient  in  this  most  important 
of  all  respects,  in  the  power Vof  "common  defence." 

promote  the  gene;;al  Welfare,  and  secure  the  Bless- 
ings^ of  Liberty^o  ourselves  and  our  Posterity,  do 
ordain  and  establish  this  CONSTITUTION  for  the 
United  States  of  America. 

^  Comment  has  been  made  that  God  is  not  mentioned 
in  our  Constitution.  In  the  Declaration  of  Independence 
"firm  reliance  on  the  protection  of  Divine  Providence" 
is  expressed,  and  in  the  Articles  of  Confederation  it  is 
mentioned  that  "  it  has  pleased  the  Great  Governor  of  the 
world  to  incHne  the  hearts  of  the  legislatures  we  respec- 
tively represent  in  Congress  to  approve  of  and  to  author-  i 
ize  us  to  ratify  the  said  Articles  of  Confederation  and^-*^ 
perpetual  union." 

The  Commonwealth  of  Australia  put  in  the  preamble 
of  the  Constitution  which  it  submitted  to  the  EngHsh  Par- 
liament for  approval  (1900)  that  "Whereas,  the  people  of 
New  South  AVales,  Victoria,  ^South  Australia,  Queensland, 
and  Tasmania,  humbly  relyifig  on  the  blessings  of  Almighty 
God,  have  agreed  to  unite,"  etc. 


6  Constitution  of  the  United  States 

A  very  interesting  discussion  of  the  proposition  that 
"this  is  a  religious  people"  is  contained  in  a  decision  of  the 
Supreme  Court  of  the  United  States  (1892)  holding  that 
the  Alien  Contract  Labor  Law  of  1885  (prohibiting  the 
bringing  in  of  "foreigners  and  aliens  under  contract  or 
agreement  to  perform  labor  in  the  United  States"),  while 
applying  to  an  ahen  brought  in  to  perform  "labor  or  service 
of  any  kind",  did  not  relate  in  purpose  ^ —  although  it  did 
in  language  —  to  a  minister  of  the  Gospel  who  had  been 
employed  to  come  from  England  to  accept  service  in  a.  New 
Yc^k  church.  In  applying  the  rule  of  statutory  interpre- 
tation, that  the  intent  of  the  legislature  must  be  followed, 
the  court  said  that  "no  purpose  of  action  against  religion 
could  be  imputed  to  any  legislation"  when  the  language 
did  not  clearly  state  it,  for  the  reason  that  from  the  commis- 
sion given  by  Ferdinand  and  Isa:bella  to  Columbus  down 
through  all  the  charters  to  the  colonies,  as  well  as  in  the 
Declaration  of  Independence  and  in  the  constitutions  of 
all  the  States,  there  is  to  be  found  a  "profound  reverence 
for  religion  and  an  assumption  that  its  influence  in  all 
human  ajffairs  is  essential  to  the  well-being  of  the  United 
States." 

In  a  dark  day  of  the  Civil  War,  on  July  2,  1864, 
shortly  after  the  disastrous  Red  River  expedition,  but 
only  eight  days  before  General  Sherman  drove  the  army  of 
General  Hood  within  the  defences  of  Atlanta  (a  step  leading 
to  the  march  to  the  sea  which  broke  the  Confederacy  in 
two),  the  Senate  and  the  House  of  Representatives  passed 
a  concurrent  resolution  requesting  the  President  to  "ap- 
point a  day  for  humiHation  and  prayer  by  the  people  of 
the  United  States  ...  to  implore  the  compassion  and  for- 
giveness of  the  Almighty  ...  to  implore  Him  as  the 
Supreme  Ruler  of  the  World  not  to  destroy  us  as  a  people, 
nor  suffer  us  to  be  destroyed  by  the  hostility  or  connivance 
of  other  nations."  Accordingly  President  Lincoln  issued, 
three  days  before  the  investment  of  Hood's  army,  a  proc- 


Its  Sources  and  Application 


lamation  appointing  Thursday,  August  2,  1864,  as  a  day 
to  be  observed  as  the  Houses  had  "so  solemnly,  so  earnestly 
and  so  reverently  recommended." 

"Although  the  Preamble  indicates  the  general  purpose 
for  which  the  people  ordained  and  established  the  Consti- 
tution," said  the  Supreme  Court  (1905),  "it  has  never  been 
regarded  as  the  source  of  any  substantive  power  con- 
ferred on  the  Government  in  the  United  States  or  on  any 
of  its  Departments." 


I 


ARTICLE  I 

Section  i.  All  legislative  Powers  herein  granted 
shall  be  vested  in  a  Congress  pi  the  United  States, 
which  shall  consist  of  a  Senate  and  House  of  Rep- 
resentatives.^ *      • 

^"The  whole  system  of  the  National  Government,"  said, 
President  Monroe,  speaking  of  the  powers  given  by  the 
Constitution  to  Congress,  ''may  be  said  to  rest  essentially 
on  the  powers  granted  to  this  branch.  They  markHhe 
limit  within 'which,  wtth  few  exceptions,  all  the  branches 
must  move  in  the  discharge  of  their  respective  functions." 

In  the  Colonial  Declaration  of  Rights  of  October  14, 
1774,  it  was  said  to  be  indispensably  necessary  to  good 
government  th^^t  "the  constituent  branches  of  the  legis- 
lature be  independent  of  each  other*"        '  ^ 

It  was  in  the  reign  of  Edward  III  (1341)  that  the  Parlia- 
ment of  England  divided  into  two  Houses,  " — ' 

The  Congress  which  had  existed  under  the  Articles  of 
Confederation  consisted  of  only  one  House,  which  was 
made  up  of  ''delegates  .  .  .  appointed  in  such  manner 
as  the  legislature  of  each  State  shall  direct",  who  might 
be  replaced  by  others  at  any  time  within  the  year  for 

^  which  they  were  chosen.    A_Congress_XQnsi&tinfi:..  of two- 

Hoiisesmjk:.^L-.Uie^fost^  fundament  between 

-^  tfe  new  ConstitutipjL„aiid.  thcL^ Articles  of  Confederation. 
In  ^  the  Constitutional  Convention  the  first  resolution 
adopted  declared  for  a  Congress  of  two  Houses. 

Section  2.  The  House  of  Representatives  shall  be 
composed  of  Members  chosen  every  second  Year  ^ 

^As  already  noted,  the  Congressmen  under  the  former 
government  were  chosen  for  one  year  and  were  changeable 
in  the  meantime  at  the  pleasure  of  the  State. 


Its  Sources  and  Application 


By  an  act  of  the  English  Parliament  in  1694  the  term 
of  a  member  of  the  House  of  Commons  was  fixed  at  three 
years.  In  1716  the  Septennial  Act  was  passed  extending 
the  term  to  seven  years.  Because  it  extended  the  term  of 
the  members  who  passed  it  instead  of  applying  to  future 
Parliaments,  and  because  it  was  intended  to  keep  a  party 
longer  in  power  than  the  time  for  which  the  members  were 
elected  by  the  people,  some  authorities  considered  it  illegal. 
The  ParHament  Act  of  191 1  reduced  the  term  from  seven 
years  to  five. 

Congress,  unlike  Parliament,  is,  by  virtue  of  this  clause, 
without  power  to  fix  its  term. 

In  France  the  term  of  a  member  of  the  House  of  Deputies 
is  four  years.  A  member  of  the  House  of  Commons  in 
Canada  sits  for  five  years,  and  the  term  in  the  Australian 
House  of  Representatives  is  three  years. 

by  the  People  ^  of  the  several  States 

^  Emphasis  should  be  here  laid  upon  the  fact  that  ours 
is  the  r>n[y ^ government  in  the  world  in  which  all  tlie^cHief 
constitutional  officers  of  the  Executive  and  Legislative 
Departments  are  elected  by  the  votes  of  the  people.^'  It 
stands  unprecedented  and  unparalleled  as  a  '^government 
of  the  people,  by  the  people,  for  the  people."  Even  in  the 
countries  which  have  closely  patterned  their  governments 
on  our  Constitution,  the  election  of  officials  is  not  so  general. 
Thus  in  Canada,  in  Australia,  and  in  South  Africa  the  Gov- 
ernor Genjral  is  appointed  by  the  English  sovereign.  In 
the  RepublJp  of  France  the  President  is  chosen  by  the  Senate 
and  the  Chamber  of  Deputies  sitting  together  as  the  Na- 
tional Assembly.  In  BKazil.the  senators  are  chosen  by  the 
legislature  (as  ours  once  were)  instead  of  being  elected  by 
the  people. 

and  the  Electors  in  each  §tate  shall  have  the  Quali- 
fications requisite  for  Electors  of  the  most  numerous 
Branch  of  the  State  Legislature.^ 


10  Constitution  of  the  United  States 

^  The  property  qualifications  of  the  voters  in  the  different 
States,  as  well  as  other  requirements,  were  so  various  that 
it  was  concluded  to  let  the.practice  in  each  State  determine 
who  should  be  qualified  to  vote  for  a  candidate  for  a  seat  in 
the  National  House  of  Representatives.  "To  have  reduced 
the  different  quahfications  in  the  different  States  to  one 
uniform  rule,"  wrote  Hamilton  in  the  ''FederaHst",  "would 
probably  have  been  as  dissatisfactory  to  some  of  the  States 
as  it  would  have  been  difficult  to  the  Convention." 

No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty-five  Years,  and 
been  seven  Years  a  Citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  Inhabitant  ^  of 
that  State  in  which  he  shall  be  chosen. 

^  A  member  of  the  English  House  of  Commons  need 
not  be  an  inhabitant  or  even  a  resident  of  the  district  of 
his  constituency. 

This  Hmitation  had  no  reference  to  sex;  and  therefore 
it  was  permissible  for  a  congressional  district  in  a  State 
to  elect  a  woman  to  a  seat  in  Congress.  The  first  woman 
thus  to  be  distinguished  was  Miss  Jeannette  Rankin  of  Mon- 
tana, who  was  elected  to  the  National  House  of  Representa- 
tives in  191 6,  four  years  before  the  adoption  of  the  Nine- 
teenth Amendment  (Note  187)  gave  suffrage  to  women 
under  both  State  citizenship  (where  the  State  had  not 
already  granted  it)  and  National  citizenship. 

Representatives  and  direct  Taxes  ^^  shall  *be  appor- 
tioned among  the  several  States  which  may  be  in- 
cluded within  this  Union,  according  to  their  respective 
Numbers, 

^°  Confusion  and  contention  springing  from  this  language 
brought  about  the  adoption  in  19 13  of  the  Sixteenth  Amend- 
ment (Note  182),  which  gives  Congress  power  ''t9  lay  and 
collect  taxes  on  incomes,  from  whatever  source  derived,' 


Its  Sources  and  Application  11 

without  apportionment  among  the  several  States,  and  with- 
out regard  to  any  census  or  enumeration." 

Although  in  the  Constitutional  Convention  there  was 
some  question  of  the  meaning  of  direct  taxes,  Congress 
early  placed  an  interpretation  upon  the  term  by  an  act 
(July  14,  1798)  "to  lay  and  collect  a  direct  tax  within  the 
United  States." 

This  act  had  been  preceded  five  days  by  an  act  "to 
provide  for  the  valuation  of  Lands  and  DwelKng-houses, 
and  the  enumeration  of  slaves  within  the  United  States." 

A  tax  of  two  mills  was  by  the  laws  mentioned  laid  on 
buildings  worth  from  one  hundred  dollars  to  five  hundred 
dollars ;  and  this  was  graduated  up  as  high  as  ten  mills  on 
houses  valued  at  thirty  thousand  dollars  or  more.  A  tax 
of  fifty  cents  was  laid  on  each  slave. 

In  1880,  in  upholding  the  Income  Tax  laws  of  1 864-1 865, 
the  Supreme  Court  pointed  out  that  whenever  the  Gov- 
ernment had  imposed  a  direct  tax  it  had  never  applied 
it  except  to  real  estate  and  slaves.^ 

The  Income  Tax  Law  of  1894  imposed  (with  other  taxes) 
a  tax  on  the  rent  or  income  from  J^nd.  But  the  tax  on 
the  income  from  land  was  not  apportioned  among  or  allotted 
to  the  States  according  to  population,  as  other  direct  taxes 
always  had  been.  In  1895,  the  question  having  been  raised 
by  numerous  taxpayers,  the  Supreme  Court  held  that  the 
tax  upon  the  income  from  land  was  in  reality  a  tax  on 
the  land  itself  and  therefore  a  direct  tax  which  should  have 
been  apportioned  in  accordance  with  the  command  of 
the  Constitution.  It  was  held. on  rehearing  that  as  in 
English  history,  and  also  in  Canadian  cases  arising  under 
a  constitution  with  a  provision  like  that  in  ours,  an  income 
tax  had  been  treated  as  a  direct  tax,  it  was  therefore  neces- 
sary to  apportion  the  income  tax  as  to  incomes  from  per- 
sonal property  as  well  as  to  incomes  from  land.  Fourteen 
years  thereafter  the  Sixteenth  Amendment  was  proposed 
by  Congress  to  permit  the  taxation  of  income  from  what- 


1 2  Constitution  of  the  United  'Hates 

ever  source  derived  without  apportionment  according  to 
the  population  as  ascertained  by  the  census.  The  Amend- 
ment had  been  pending  for  over  three  and  one  half  years 
when  it  received  the  ratification  of  the  requisite  number  of 
States  to  make  it  a  part  of  the  Constitution. 

which  shall  be  determined  by  adding  to  the  whole 
Number  of  free^  Persons,  including  those  bound  ta 
Se^ice  for  a  Term  of  Years,  and  excluding.  Indians 
not  taxed,  thr^e  fifths  of  all  other  Persons.^^ 

"  Referring  to  slaves.  The  word  slave  or  slavery  does 
not  appear  in  our  Constitution  until  we  reach  the 
Thirteenth  Amendment,  adopted  (1865)  after  the  Civil 
War.  This  is  the  first  of  the  three  *' compromises  of  the 
Constitution"  (Notes  61  and  121),  which  have  been  called 
the  beginning  of  the  Civil  War  that  burst  in  fury  three 
quarters  of  a  century  after.  Akhough^sjayes,.  were^ji^ 
citizens  or  voters,  the  ni^iaber  of  themj^as_considered_in 

Jlaying^^rect  taxes  and  in  ascertaining  how  many  members 
at  State  should  have  jn  the  House  of  Representatives. 
The  fraction  "three  fifths"  had  been  agreed  upon  in  Con- 
gress three  years  before,  when  the  question  was  whether, 
in  the  levy  of  direct  taxes,  slave-holding  States  would  be 
undertaxed  (as  Northern  men  contended)  by  not  count- 
ing the  slaves  as  population  or  overtaxed  (as  the  South 
claimed)  by  counting  them.  The  compromise  then  made  as 
to  taxation  was  employed  as  to  representation  in  the  House. 
While  these  compromises  were  under  discussion  at  Phila- 
delphia the  last  Congress  under  the  Articles  of  Confedera- 
tion, sitting  at  New  York,  passed  the  ordinance  creating 
the  Northwest  Territory  (later  Ohio,  Indiana,  Illinois, 
Michigan,  and  Wisconsin)  and  forbidding  that  slavery  ever 
exist  within  its  limits.  Fiske  ("  Critical  Period  in  Amer- 
ican History")  says  that  in  1787  slavery  was  a  doud  e, 
larger  than  a  man's  hand.    The  institution  had   been 


Its  Sources  and  Application  13 

dying  slowly  for  fifty  years.  It  had  become  extinct  in 
Massachusetts  and  in  nearly  all  other  northern  States, 
and  it  had  just  been  prohibited  by  Congress  in  the  Na- 
tional domain.  In  Virginia  and  Maryland  there  was  a 
strong  party  of  aboUtion  and  the  movement  had  also  gained 
some  strength  iiTNorth  Carolina.  It  was  only  in  the  rice 
swamps  of  the  far  South  that  slave  labor  was  wanted. 
The  slave  States,  for  receiving  a  disproportionate  repre- 
sentation in  the  House  of  Representatives  on  account  of 
their  slave  population,  gave  their  support  in  the  Conven- 
tion to  the  Constitution ;  and  when  the  abohtion  of  the 
slave  trade  was  postponed  by  one  clause  for  twenty  years 
(Note  6i)  the  South  agreed  in  return  to  the  commerce 
clause  (Note  45)  providing  for  absolutely  free  trade  be- 
tween the  States.  In  the  Constitutional  Convention 
George  Mason  of  Virginia  and  other  southern  delegates 
spoke  severely  against  slavery. 

Virginia  contributed  to  the  Union  a  large  part  of  the 
Northwest  Territory,  and  delegates  from  Virginia  in  Con- 
gress under  the  Articles  of  Confederation  aided  in  drafting 
the  ordinance  which  forever  prohibited  slavery  in  that 
domain.  The  ordinance  received  the  votes  of  delegates 
from  Virginia,  Georgia,  South  Carolina,  and  North  Caro- 
lina, as  well  as  those  from  Delaware,  New  Jersey,  New 
York,  and  Massachusetts. 

But  the  invention  of  the  cotton  gin,  which  could  clean 
as  much  cotton  as  two  hundred  slaves,  and  the  coming 
in  of  spinning  machinery,  changed  the  course  of  events. 

The  actual  Enumeration  shall  be  made  within 
three  Years  after  the  first  Meeting  of  the  Congress 
of  the  United  StatA,  and  within  ^very  subsequent 
Term  of  ten  Years,  in  such  Manner  as  they  shaU  by 
Law  direct.12 

^^  Under  acts  of  Congress  'a  complete  census  has  been 
taken  every  ten  years,  the  last  in  1920.     The  census  of 


14  Constitution  of  the  United  States 

1790  showed  a  total  population  of  3,929,326,  of  which 
679,681  were  slaves.  The  population  of  the  United  States 
in  1920  was  105,683,108. 

The  Number  of  Representatives  shall  not  exceed  one 
for  every  thirty  Thousand,^^  but  each  State  shall  have 
at  Least  one  Representative ; 

^^  The  number  of  people  authorizing  a  State  to  have  a 
representative  in  the  lower  House  of  Congress  has  been 
changed  from  time  to  time  after  the  decennial  census.  In 
192 1  each  State  had  one  member  of  the  House  of  Represent- 
atives for  every  211,877.  After  the  census  of  1920  a  bill 
to  increase  the  number  of  members  of  the  House  of 
Representatives  from  435  to  483  was  defeated,  and  in 
192 1  another  bill  failed  to  pass  which  proposed  to  increase 
the  number  of  members  to  450. 

and  until  such  enumeration  shall  be  made,  the  State 
of  New  Hampshire  shall  be  entitled  to  Q^ia^  three, 
Massachusetts  eight,  Rhode-Island  and  Providence. 
Plantations  one,  Connecticut  five.  New- York  six^ 
New  Jersey  four,  Pennsylvania  eight,  Delaware  one, 
Maryland  six,  Virginia  ten.  North  Carolina  five,  Soutji 
Carolina  five,  and  Georgia  three.^^ 

^*  That  would  have  made  a  House  of  sixty-five  members. 
But  Rhode  Island  and  North  Carolina  did  not  ratify  the 
Constitution  until  after  the  new  government  had  gone 
into  effect.     In  192 1  the  House  had  a  membership  of  435. 

When  vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authoi^ty  thereof  shall  issi^ 
Writs  of  Election  to  fill  such  Vacancies.^^ 

^^It  often  happens  that  the  governor  of  a  State  must 
call  a  special  election  for  choosing  a  member  of  the  House 
of  Representatives  to  take  the  place  of  one  who  re- 
signed or  died.  j 


It'  Sources  and  Application  15 

The  House  of  Representatives  shall  chuse  their 
Speaker  ^^  and  other  Officers; 

1^  So  in  England,  in  Canada,  in  Australia,  and  in  South 
Africa  the  presiding  officer  of  the  House  is  elected  by  the 
members,  and  also  in  the  Argentine  Republic  and  in  Brazil. 
In  England  the  Speaker  of  the  House  of  Commons  is  to 
a  degree  nonpartfsan,  usually  holding  office  through  suc- 
cessive administrations. 

and  shall  have  the  sole  Power  of  Impeachment.^^ 

*^  The  House  formulates  the  charge  against  the  official 
and  reduces  it  to  writing.  Then  the  Senate  sits  as  a  court 
(with  the  Chief  Justice  of  the  United  States  presiding  when 
the  accused  is  the  President)  and  hears  the  witnesses  and 
pronounces  judgment.  It  is  to  be  said  with  pride  that 
there  have  been  but  few  impeachments  in  our  history. 
One  judge  of  a  United  States  Court  was  impeached,  tried 
and  removed  for  drunkenness,  another  for  disloyalty  dur- 
ing the  Civil  War,  and  a  third  for  conduct  not  becoming 
to  a  judge.  A  member  of  President  Grant's  Cabinet  was 
impeached  by  the  House  of  Representatives,  but  as  he 
resigned  the  Senate  did  not  try  him. 

The  great  impeachment  was  that  of  President  Andrew 
Johnson,  which  the  House  of  Representatives  brought 
on  February  24,  1868.  The  President  and  the  Congress 
had  been  in  passionate  conffict  over  the  reconstruction  of 
the  southern  States  which  had  seceded  from  the  Union 
and  which  had  been  overcome  in  the  Civil  War.  It  was 
the  belief  of  the  President  that  he,  as  commander  in  chief 
of  the  victorious  army  aifti  navy  (Note  85)  and  pos- 
sessed under  the  Constitution  of  the  pardoning  power 
(Note  87),  which  he  had  exercised  toward  those  lately 
in  hostile  arms,  should  supervise  and  control  the  return 
of  the  southern  States,  which  had  never  been  legally  out 
of  the  Union.    He  claimed  to  be  carrying  out  the  plan  of 


16  Constitution  of  the  United  Sates 

Lincoln.  But  Congress,  insisting  that  it  had  the  author- 
ity, and  that  as  many  of  the  southern  States  had  enacted 
vagrancy  laws  and  other  statutes  designed  to  put  the 
liberated  Negro  practically  in  his  former  state  of  bondage, 
it  became  its  duty  to  effectuate  the  decision  reached  by 
war,  passed  two  Reconstruction  Acts  over  the  President's 
veto.  The  President  denounced  the  acts  as  not  only  un- 
constitutional but  as  also  indefensibly  harsh,  especially 
as  they  affected  a  great  number  of  people  in  the  southern 
States  who  had  been  loyal  to  the  Union.  In  1867  Congress 
passed  over  the  President's  veto  the  Tenure  of  Office 
Act,  which  forbade  him  to  remove  his  appointees  to  office 
without  the  consent  of  the  Senate^  which  is  required  by 
the  Constitution  to  approve  (Note  89)  the  appointments. 
That  Act  of  Congress  was  in  disregard  of  an  early  congres- 
sional interpretation  of  the  Constitutional  clause  cited 
and  of  the  practice  which  had  been  sanctioned  through 
the  administration  of  sixteen  Presidents.  President  Johnson 
transgressed  the  Act  by  removing  Edwin  M.  Stanton, 
Secretary  of  War,  who  was  openly  hostile  to  the  recon- 
struction poHcy  of  his  chief.  For  this  the  House  of  Rep- 
resentatives voted  articles  of  impeachment,  and  from 
March  5,  1868,  to  May  16  the  Senate  sat  as  a  trial  court. 
Chief  Justice  Salmon  P.  Chase  presiding.  The  managers 
of  the  impeachment  failed  to  secure  the  two-thirds  vote 
necessary  under  the  Constitution  to  convict  (Note  24). 

In  messages  to  Congress  President  Grant  and  President 
Hayes  requested  the  repeal  of  the  Tenure  of  Office  Act. 
It  remained  upon  the  statute  book  until  Cleveland's 
administration,  when  (1886)  gthat  Executive  sternly  re- 
fused to  give  to  the  Senate  his  reasons  for  removing  an 
official  whose  appointment  the  Senate  had  of  course  con- 
firmed. He  said  that  it  was  his  duty  to  maintain  the 
Chief  Magistracy  ''unimpaired  in  all  its  dignity  and  vigor" ; 
and  he  denied  "that  the  Senate  has  the  right  in  any 
case  to  review  the  act  of  the  Executive  in  removing  or 


Its  Sources  and  Application  17     y 

suspending  a  public  officer."     Later  (1887)   the  Tenure 

ent  of  President  Johnson,  was  repeale3  by  CongressT 
A  humorous  writer  of  the  day  who  was  opposed  to  the 
theories  of  President  Johnson,  as  expressed  in  a  series  of 
speeches  by  the  Executive,  said  that  the  President  was 
trying  "to  arouse  the  people  to  the  danger  of  concentrating 
power  in  the  hands  of  Congress  instead  of  diffusing  it 
through  one  man." 

Section  3.  The  Senate  of  the  United  States  shall 
be  composed  of  two  Senators  from  each  State,  ^^ 

^^  It  has  already  been  remarked  that  the  Congress  under 
the  Articles  of  Confederation  consisted  of  only  one  House. 
The  provision  for  two  senators  from  each  State,  regard- 
less of  size  or  population,  while  population  was  to  determine 
the  number  of  members  in  the  House  of  Representatives, 
was  agreed  to  so  that  the^maller  States  might  not  be  over- 
borne in  both  Houses  of  Congress  by  the  votes  of  the  larger 
States.  Besides,  it  waTHesired  that  the  States  as  political 
organizations  be  represented  in  Congress.  So  at  logger- 
heads over  this  were  the  large  States  and  the  small  States 
that  more  than  once  the  Constitutional  Convention  was 
at  the  point  of  breaking  up.  Benjamin  Franklin  was  so 
affected  by  the  disagreement  that  he  suggested  that  the 
meetings  be  opened  with  prayer.  Lord  Bryce  says  that\ 
the  Americans  invented  this  plan  of  having  one  House  rep-  \ 
resent  the  people  directly  on.  the  basis  of  population,  and  i^"'^ 
the  other  (the  Senate)  represent  the  States  on 'the  basis  of 
State  equality  as  autonomous  communities.  He  beUeves 
that  it  was  this  device  which  made  federation  possible 
in  the  United  States.  The  device  has  been  adopted  in 
many  other  countries.  ,^ ^  ^ 

In  1890  the  United  States  of  Brazil  followed  our  example 
and  provided  in  its  Constitution  for  the  equaHty  of  the 
Strifes  in  the  Senate,  \.hile  the  number  of  members  in  the 


18  Constitution  of  the  United  States 

Chamber  of  Deputies  is  determined  by  population.  Brazil 
has  three  senators  from  each  State  chosen  by  the  State 
legislature  (as  ours  were  chosen  before  the  adoption 
of  the  Seventeenth  Amendment  in  191 3)  for  a  term  of 
nine  years,  one  third  of  the  number  going  out  of  office 
every  three  years,  instead  of  every  two  years,  as  our 
senators  go  out. 

The  Constitution  of  Canada  (North  America  Act  of 
the  British  ParKament  of  1867)  contains  provisions  for 
keeping  the  provinces  in  a  definite  (though  not  equal)  re- 
lationship in  the  Senate. 

In  the  Commonwealth  of  Australia  the  Constitution 
(1900)  provides  for  not  less  than  six  senators  from  each  of 
the  five  States,  whose  term  is  six  years.  One  half  of  the 
senators  go  out  every  three  years.  Par^^^ent  may  in- 
crease the  number  of  senators  from  each  State,  but  it  can- 
not impair  the  relationship  of  the  States  in  the  Senate. 

chosen  by  the  Legislature  thereof, ^^  for  six  Years; 
and  each  Senator  shall  have  one  Vote. 

^^  Election  of  senators  by  the  legislatures  of  the  States 
was  superseded  by  direct  election  by  the  people  upon  the 
adoption  (May  31,  19 13)  of  the  Seventeenth  Amendment, 
which  should  be  here  referred  to  (Note  iB^  and*  read.      4'^ 

In  the  Constitutional  Convention  it  was3elermined 
to  have  the  States  as  political  bodies  represented  in  the 
Senate,  the  people  themselves  being  represented  in  the 
other  House.  As  the  State  itself  was  to  be  represented  in 
Congress,  it  was  concluded  that  the  State  government 
(the  legislature)  could  best  choose  its  spokesmen.  A  plan 
to  have  senators  elected  by  the  House  of  Representatives 
was  rejected  because  it  ''would  create  a  dependence  con- 
trary to  the  end  proposed."  A  plan  to  have  senators 
appointed  by  the  President  was  opposed  as  "a  stride 
towards  monarchy."  There  were  strong  advocates  of  the 
popular  election  which  the  Seventr.jnth  Amendment  long 


Its  Sources  and  Application  19 

after  brought  about,  such  as  James  Wilson  of  Pennsylvania, 
who  became  a  Justice  of  the  Supreme  Court  of  the  United 
States. 

Immediately  after  they  shall  be  assembled  in  Con- 
sequence of  the  first  Election,  they  shall  be  divided 
as  equally  as  may  be  into  three  Classes.  The  Seats 
of  the  Senators  of  the  first  Class  shall  be  vacated  at 
the  Expiration  of  the  second  Year,  of  the  second  Class 
at  the  Expiration  of  the  fourth  Year,  and  of  the  third 
Class  at  the  Expiratio^  of  the  sixth  Year,  so  that 
one-third  may  be  chosen  every  second  Year ;  20 

2^  As  has  been  seen,  Brazil  and  Australia  have  similar 
provisions  for  making  the  Senate  a  perpetual  body,  so  that 
it  cannot  be  made  up  (as  the  House  may  be)  entirely  of 
inexperienced  members. 

and  if  Vacancies  happen  by  Resignation,  or  otherwise, 
during  the  Recess  of  the  Legislature  of  any  State, 
the  Executive  thereof  may  make  temporary  Appoint- 
ments until  the  next  Meeting  of  the  Legislature,^! 
which  shall  then  fill  such  Vacancies. 

2^  Now,  under  the  Seventeenth  Amendment,  appoint- 
ments are  made  until  an  election  by  the  people  can  be 
held. 

No  Person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine 
Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  ^ 
for  which  he  shall  be  chosen. 

22  See  Note  9. 

The  Vice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  un- 
less they  be  equally  divided.^^ 


20  Constitution  of  the  United  States 

23  A  search  of  the  records  m  191 5  showed  that  in  the 
course  of  our  history  the  Vice  President  had  cast  the  de- 
ciding vote  in  the  Senate  179  times,  often  with  respect  to 
the  most  momentous  matters. 

In  Washington's  administration  the  vote  of  Vice  Presi- 
dent Adams  more  than  once  saved  the  policy  of  neu- 
trahty.  On  April  22,  1793,  President  Washington  pro- 
claimed, notwithstanding  a  strong  public  sentiment  for 
France  because  of  its  help  to  us  during  the  Revolution, 
that  as  a  state  of  war  existed  between  France  on  the  one 
hand,  and  Great  Britain,  the  United  Netherlands,  Austria, 
Prussia,  and  Sardinia,  on  the  other,  he  thought  it  fitting 
to  declare  the  disposition  of  the  United  States  ''to  adopt 
and  pursue  a  conduct  friendly  and  impartial  toward  the 
belHgerent  powers"  and  to  exhort  and  warn  citizens  care- 
fully to  avoid  all  acts  which  might  in  any  manner  tend  to 
contravene  such  disposition.  It  was  further  stated  that 
any  citizen  violating  the  proclamation  *'will  not  receive 
the  protection  of  the  United  States."  Thus  was  estab- 
lished a  pohcy  which  has  ever  since  been  pursued.  The 
deciding  vote  of  Vice  President  Hobart  on  February  14, 
1899,  ratified  our  treaty  with  Spain  after  the  war.  But  of 
course  one  vote  cast  in  conformity  with  the  Constitution 
as  fully  expressed  the  people's  will  as  though  they  all  had 
voted  so. 

In  Brazil  the  Vice  President  is,  like  ours,  President  of 
the  Senate  and  in  case  of  a  tie  casts  the  deciding  vote. 

Under  the  Constitution  of  Canada  the  Speaker  of  the 
Senate  is  appointed  by  the  Governor  General  instead  of 
being  elected,  and  a  tie  vote  in  the  Senate  is  recorded  as 
a  negative  and  the  measure  or  motion  is  lost,  while  in  the 
Canadian  House  of  Commons,  which  elects  its  presiding 
officer,  the  Speaker  casts  the  deciding  vote  in  case  of  a  tie. 

In  the  AustraHan  Senate  the  members  elect  from  their 
number  a  president,  who  votes  with  the  others,  and  there- 
fore a  tie  is  recorded  as  a  negative. 


Its  Sources  and  Application  21 

When  President  Harding  took  office  (192 1)  he  gave 
Vice  President  CooUdge  a  seat  at  the  Cabinet  table.  There- 
tofore the  Vice  President  had  been  practically  apart  from 
the  executive  affairs  of  the  Nation.  Of  course  much  of 
his  time  is  devoted  to  the  Legislative  Department  as  the 
constitutional  presiding  officer  of  the  Senate. 

The  Senate  shall  qhuse  their  other  Officers,  and 
also  a  President  pro  tempore,  in  the  absence  of  the 
Vice  President,  or  when  he  shall  exercise  the  Office 
of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.     When  sitting  for  that  Purpose,  they 
shall  be  on  Oath  or  Affirmation,     ^hen  the  Presi/^ 
dent  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside:    And  no  Person  shall  be  convictei 
witEbut  the  "Concurrence  of  two  thirds  of  the  Memll 
bers  present. 

^^  The  ''concurrence  of  two  thirds  of  the  members 
present"  in  an  impeachment  trial  may  produce  widely 
varying  numerical  results.  To  illustrate :  in  1922  the  Senate 
has  ninety^six  members,  of  whom  forty-nine  (a  majority)  are 
a  quorum  for  doing  business.  If  the  whole  membership 
should  be  present  the  two  thirds  necessary  to  impeach  would 
be  sixty-four.  But  if  only  the  quorum  of  forty-nine  should 
be  present,  the  accused  might  be  convicted  by  two  thirds 
of  that  number,  or  by  thirty-three. 

Judgment  in  Cases  of  Impeachment  shall  not  ex- 
tend further  than  to  removal  from  Office,  and  dis- 
qualification to  hold  and  enjoy  any  Office  of  honor, 
Trust,  or  Profit  under  the  United  States :  25 

2^  This  means  that  none  of  the  imprisonments,  confis- 
cations of  property,  or  degradations  of  name  and  family, 
common  under  European  law,  should  be  known  to  our 


22  Constitution  of  the  United  States 

system  of  government.  Any  law  of  Congress  prescribing 
punishments  upon  impeachment  beyond  those  named  the 
courts  would  be  in  duty  bound  to  declare  void  and  for  that 
reason  to  decline  to  give  it  effect. 

but  the  Party  convicted  shall  nevertheless  be  liable 
and  subject  to  Indictment,  Trial,  Judgment  and  Pun- 
ishment, according  to  Law.^^ 

2^1  That  is,  if  one  be  impeached  and  removed  from  an 
office  of  honor,  trust,  or  profit  because  of  theft  or  other 
crime,  he  will,  notwithstanding  the  judgment  in  impeach- 
ment, be  liable  to  punishment  for  such  theft  or  other 
crime. 

Section  4.  The  Times,  Places,  and  Manner  of 
holding  Elections  for  Senators  and  Representatives, 
shall  be  prescribed  in  each  State  by  the  Legislature 
thereof;  but  the  Congress  may  at  any  time  by  Law 
make  or  alter  such  'Regulations,  except  as  to  the 
Places  of  chusing  Senators.  ^^^ 

26*  This  provision  respecting  the  time  and  manner  of 
holding  elections  was  not  touched  by  Congress  until  1842, 
when  it  was  enacted  that  members  of  the  House  of  Rep- 
resentatives should  be   elected  by  districts.    Until  thar, 
time  they  had  been  elected  by  ''general  ticket",  each  voter  I 
in  a  State  voting  for  as  many  candidates  as  the  State  was^ 
entitled  to;    but  that  method  gave  undue  preponderance 
of  power  to  the  political  party  having  a  majority  of  votes 
in  the  State,  when  it  might  not  have  a  majority  in  each 
district. 

In  1872,  to  cure  various  evils.  Congress  required  all 
elections  for  the  House  to  be  held  on  the  Tuesday  after 
the  first  Monday  in  November,  b    *-:i^mg  in  1876. 

To  prevent  the  i^luivi  of  "the  election  of  a  senator  by 
the  legislature,  where  one  Hou:^  voted  for  one  candidate 


Its  Sources  and  Application  23 

and  the  other  for  another  and  they  refused  to  reconcile 
their  differences,  Congress  directed  the  two  bodies  to  meet 
in  joint  session  on  a  fixed  day  and  required  their  meeting 
every  day  thereafter. 

Congress  also  fixed  the  day  for  the  voting  in  all  States 
for  President  and  Vice  President,  the  first  Tuesday  after 
the  first  Monday  in  November.  " 

In  192 1  the  Supreme  Court  of  the  United  States  passed 
upon  the  Corrupt  Practices  Act  of  Congress  of  June  25, 
1 9 10,  which  forbids  a  candidate  for  a  seat  in  the  House  of 
Representatives  or  for  a  seat  in  the  Senate  to  contribute 
or  expend  *'in  procuring  his  nomination  and  election  any 
sum,  in  the  aggregate,  in  excess  of  the  amount  which  he  may 
lawfully  give,  contribute,  expend  or  promise,  under  the 
laws  of  the  State  in  which  he  resides."  The  defendant  was 
charged  with  having  made  use  of  more  money  than  the  law 
of  his  State  permitted,  not  in  an  effort  to  control  a  nomi- 
nating convention  or  a  general  election,  but  in  the  primary 
election  which  has  in  some  of  the  States  superseded  the 
nominating  convention.  The  decision  was  that  the  Act 
of  Congress  could  not  constitutionally  include  the  primary 
election.  The  selection  of  a  party  candidate  who  will 
later  run  for  election  ^'is  in  no  real  sense",  said  the  Court, 
"part  of  the  manner  of  holding  the  election."  However 
f  the  candidate  may  be  offered  —  by  convention,  by  primary, 
by  petition,  or  voluntarily  —  that  "does  not  directly 
affect",  said  the  Court,  "the  manner  of  holding  the 
election."  The  "manner  of  holding  elections  for  Sena- 
tors" is  the  only  subject,  the  Supreme  Court  held,  that  the 
Constitution  empowers  Congress  to  regulate. 

Elections  in  the  United  States  to-day  are  cleanness 
itself  in  comparison  with  what  they  were  in  earlier  years 
and  in  England.  "The  elections  for  the  new  Parliament 
which  met  in  1768,"  says, Green's  "English  People", 
Section  1501,  "were  more  corrupt  than  any  that  had  as  yet 
been   witnessed;     and   even   the   stoutest   opponents   of 


24  Constitution  of  the  United  States 

reform  shrank  aghast  from  the  open  bribery  of  constit- 
uencies and  the  prodigal  barter  of  seats." 

The  Congress  shall  assemble  at  least  once  in  every 
Year,2^  and  such  Meeting  shall  be  on  the  first  Mon- 
day in  December,  unless  they  shall  by  Law  appoint 
a  different  Day. 

^^  This  rendered  impossible  such  conflicts  as  existed  in 
England  when  the  King  convened  and  dissolved  Parlia- 
ment at  pleasure;  and  when,  in  retaliation,  Parliament 
resolved  that  it  could  be  dismissed  only  by  its  own  action. 
During  those  troublous  times  the  Short  Parliament  sat 
three  weeks  and  the  Long  ParHament  over  nineteen  years. 

Charles  I  ruled  England  eleven  years  (1629-1640)  without 
calHng  a  Parliament.  He  obtained  money  for  his  needs 
by  so-called  loans  from  wealthy  barons,  by  taxes  upon 
ships,  which  were  called  tonnage,  by  many  kinds  of  fines 
for  trumped-up  offenses,  and  by  reviving  monopolies 
which  Elizabeth  and  other  Tudor  sovereigns  had  employed. 
The  hopes  of  the  country  were  finally  raised  by  the  sitting 
of  the  so-called  Short  ParHament,  which  was  abruptl)^ 
dismissed  by  the  King  at  the  end  of  three  weeks  because' 
it  would  not  vote  money  to  carry  on  a  war  against  the 
Scots.  With  England  in  defection  and  the  Scots  invading  I 
the  North,  Charles  was  driven  (1640)  ''with  wrath  and 
shame  in  his  heart"  to  ''summon  again  the  Houses  to 
Westminster."  This  was  the  Long  ParKament,  which 
lasted  for  nearly  twenty  years.  This  Parliament  having 
determined  upon  perpetuating  itself,  Cromwell  and  his 
soldiers  dissolved  it.  "But  you  mistake,  sir,"  said  John 
Bradshaw,  "if  you  think  the  Parliament  dismissed.  No 
power  on  earth  can  dissolve  the  Parliament  but  itself, 
be  sure  of  that !  V  Subsequently  it  was  revived  and  again 
expelled.  In  164P  it  called  the  election  of  a  new  Parliament 
and  then  dissolvexl  itself. ' 


Its  Sources  and  Application  25 

As  far  back  as  the  reign  of  Edward  III  (1327-1377) 
it  had  been  enacted  that  ParHament  "should  be  held 
every  year  or  oftener  if  need  be"  ;  but  Hallam  (''  Constitu- 
tional History  of  England  ")  says  that  this  enactment  had 
been  respected  in  no  age.  A  complaint  in  the  Declaration 
of  Independence  was  that  King  George  III  "has  dissolved 
representative  houses  repeatedly  for  opposing  with  manly 
firmness  his  invasion  of  the  rights  of  the  people;  he  has 
refused  for  a  long  time  after  such  dissolution  to  cause 
others  to  be  elected." 

The  Canadian  Constitution  requires  a  session  of  ParHa- 
ment every  year,  and  it  forbids  that  twelve  months 
intervene  between  sessions,  and  the  like  provision  is  in 
the  Austrahan  Constitution  and  in  the  Constitution  of 
South  Africa. 

It  is  required  by  the  Constitution  of  Brazil  that  the  Na- 
tional Congress  (the  Senate  and  the  Chamber  of  Deputies) 
shall  convene  every  year  in  May  for  four  months.  The 
duration  of  a  Congress  is  three  years,  as  compared  with 
ours  of  two  years. 

The  Constitution  of  France  requires  the  Chamber  of 
Deputies  and  the  Senate  to  convene  at  least  once  each 
year  for  at  least  five  months,  and  the  sessions  of  the  Houses 
must  begin  and  end  together. 

In  Froissart's  time  (1396)  it  was  the  custom  (Chronicles, 
Ch.  174)  for  the  EngHsh  Parhament  to  sit  in  the  King's 
palace  at  Westminster  for  forty  days ;  but  as  Richard  II 
was  going  to  Calais  to  marry  Isabella  of  France,  he  attended 
only  five  days  and  that  ended  the  session. 

Until  May,  1789,  the  month  after  Washington  entered 
upon  his  duties  as  President,  the  States  General  of  France  had 
not  been  convened  by  the  King  for  175  years.  Upon  com- 
ing together  they  immediately  precipitated  the  Revolution. 

Enough  has  been  stated  to,  make  plain  what  lies  back 
of  this  clause  for  orderly  and  stable  government,  which 
has  been  copied  throughout  the  world. 


Constitution  of  the  United  States 


Section  5.  Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own 
Members,^^ 

2^  The  English  Parliament  always  claimed  this  right. 
After  the  World  War  a  member  of  our  House  of  Repre- 
sentatives was  denied  his  seat  on  the  ground  that  he  had 
been  disloyal  to  the  RepubHc.  Hallam  gives  as  the  first 
instance  of  record  the  expulsion  from  the  House  of  Commons 
in  1 58 1  of  Arthur  Hall,  a  burgess  from  Grantham.  In 
addition  to  being  expelled  he  was  fined  five  hundred  marks 
and  then  sent  to  the  Tower,  where  it  was  the  intention 
of  the  Commons  to  leave  him,  but  the  dissolution  of  ParUa- 
ment  by  the  King  ended  its  jurisdiction  over  him  and  he 
was  released. 

and  a  Majority  of  each  shall  constitute  a  Quorum  to 
do  Business;  but  a  smaller  Number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel 
the  Attendance  of  absent  Members,  in  such  Manner, 
and  under  such  Penalties  as  each  House  may  pro- 
vide. 

Each  House  may  determine  the  Rules  of  its  Pro- 
ceedings, punish  its  Members  for  disorderly  Behavior 
and,  with  the  Concurrence  of  two  thirds,  expel  a 
Member.29 

2^  But  that  power  cannot  be  extended  to  outside  matters. 
Thus  in  1876  the  House  of  Representatives  appointed  a 
committee  to  inquire  into  the  insolvency  of  a  firm  with 
which  the  Secretary  of  the  Navy  had  deposited  money 
of  the  government.  A  witness  who  was  called  by  the  com- 
mittee declined  to  give  names  requested  or  to  produce 
papers.  Repeating  his  refusal  when  brought  to  the  bar 
of  the  House,  he  was  adjudged  in  contempt  and  was  com- 
mitted to  the  common  jail,  from  which  he  was  released 
by    habeas    corpus   after  forty -five  days.       I      '  w'-eurM^n 


Its  Sources  and  Application  91 

brought  an  action  for  money  damages  against  the  Speaker 
of  the  House  and  others  on  the  ground  of  false  imprison- 
ment, and  Congress  paid  by  appropriation  the  judgment 
which  he  recovered.  When  the  case  reached  the  Supreme 
Court  of  the  United  States  it  was  held  that  fthe  House 
doesnotpossess^uadex-the-  Constitution  any  general  power 
to  punEh  for^Joatempt.  While  it  m^y  punish  its  own 
members  and  pass  upon  questions  of  election  and  some 
others,  the  Court  said,  it  was  without  authority  to  imprison 
as  it  did.  Because  the  United  States  was  a  creditor  of 
a  man  whose  business  methods  were  questioned,  said,  the 
Court,  that  did  not  warrant  the  House  of  Representatives 
in  subjecting  him  to  the  unHmited  scrutiny  or  investigation 
of  a  Congressional  committee;  and  the  recourse  of  the 
government  was,  Hke  that  of  any  other  creditor,  an  action 
in  a  court  of  law  for  the  recovery  of  its  money.  Thus  we 
see  how;  needful  to  the  citizen,  even  in  a  republic,  are  defi- 
nite constitutional  safeguards,  and  how  effectively  they 
are  worked  out  under  our  system.  ^ 

As  late  as  19 16  the  liberty  of  the  citizen  was  again 
threatened  in  a  hke  manner.  The  House  of  Representa- 
tives issued  a  warrant  for  the  arrest  of  a  United  States 
attorney  in  New  York  for  making  statements  which  were 
considered  ** defamatory  and  insulting"  and  as  tending 
"to  bring  the  House  into  public  contempt  and  ridicule." 
After  he  had  been  taken  into  custody  by  the  sergeant  at 
arms  of  the  House  he  sought  release  by  a  writ  of  habeas 
corpus,  which  the  trial  court  denied.  The  Supreme  Court 
reversed  that  holding.  It  referred  to  the  provisions  in 
the  early  constitutions  of  the  States  which  were  intended 
*'to  destroy  the  admixture  of  judicial  and  legislative  power" 
which  had  been  possessed  by  the  Houses  of  Parliament 
in  England.  That  blending  of  power  does  not  exist  under 
our  Constitution.  For  redress  on  account  of  slanderous 
or  Hbelous  accusations  a  riiember  of  the  House  must, 
like  other  citizens,  resort  to  a  court  of  law. 


28  Constitution  of  the  United  States 

Each  House  shall  keep  a  Journal  of  its  Proceed- 
ings, and  from  time  to  time  publish  the  same,  ex- 
cepting such  Parts  as  may  in  their  Judgment  re- 
quire Secrecy  ;^°  and  the  Yeas  and  Nays  of  the 
Members  of  either  House  on  any  question  shall,  at 
the  Desire  of  one  fifth  of  those  Present,  be  entered 
on  the  Journal. 

^^  Every  word  uttered  in  the  House  and  in  the  Senate 
(except  in  executive  sessions)  is  taken  down  stenographically 
and  appears  in  print  the  next  morning  as  the  Congressional 
Record.     Each  House  keeps  a  journal. 

Neither  House,  during  the  Session  of  Congress, 
shall,  without  the  Consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  Place  than 
that  in  which  the  two  Houses  shall  be  sitting.^^ 

^^  The  reign  of  Charles  II  of  England  (1630-1685)  was 
hardly  more  remarkable,  says  Hallam,  for  the  vigilance  of 
the  House  of  Commons  against  the  arbitrary  use  of  authority 
by  the  King  than  for  the  warfare  which  it  waged  against 
the  House  of  Lords  whenever  it  saw,  or  thought  it  saw, 
a  usurpation  by  that  body.  In  one  instance  it  became 
necessary  for  the  King  to  resort  to  successive  adjourn- 
ments for  fifteen  rftonths  to  stop  a  quarrel  between  the 
Houses.  A  few  years  later  the  strife  again  appeared  and 
the  King  made  peace  once  more.  /The  provision  in  our 
Constitution  requires  the  House  of  Representatives  and 
the  Senate  to  sit  at  the  same  place  and  to  work  together) 
As  the  Constitution  defines  quite  clearly  the  powers  and 
duties  of  each  House,  the  disputes  about  authority  which 
are  blots  on  English  history  never  occur  in  the  United 
States.  If  either  House  could  adjourn  at  pleasure  it  might 
completely  obstruct  public  business  and  practically  de- 
stroy a  session  of  Congress.  The  two  Houses  must  agree 
upon  adjournment,  and  if  they  cannot  agree  the  President 


Its  Sources  and  Application  2§ 

may  (Note  94)  adjourn  them.  But  except  in  case  of  the 
inability  of  the  Houses  to  agree,  the  President  has  no 
control  over  the  adjourning  of  Congress. 

The  Congress  of  one  House  under  the  Articles  of  Con- 
federation was  authorized  to  adjourn  to  any  time  (not 
beyond  six  months)  and  to  any  place  in  the  United  States. 

In  Canada  and  Australia  the  Governors  General  are 
empowered  by  the  Constitutions  to  prorogue  (postpone 
or  dissolve)  the  legislative  body  or  Parliament.  In  Chile 
both  Houses  (Deputies  and  Senate)  must  convene  and 
adjourn  at  the  same  time.  In  France  the  President  may 
adjourn  the  Chamber  of  Deputies  and  the  Senate  (which 
must  meet  at  least  once  each  year  and  continue  in  session 
for  at  least  five  months),  but  not  for  a  longer  time  than  one 
month  and  not  more  than  twice  during  one  session.  In 
France  a  meeting  of  one  House  when  the  other  is  not  in 
session  is  illegal,  except  when  the  Senate  sits  as  a  court. 

Section  6.  The  Senators  and  Representatives  shall 
receive  a  CompensaH5n  for  their  Services,  to  be  as- 
certained by  Law,^' 

^2  That  is,  a  bill  must  be  passed  by  themselves  and 
signed  by  the  President,  fLxing  their  salaries. 

and  paid  out  of  the  Treasury  of  the  itnited  States.^^ 

^^  This  was  another  American  innovation.  In  the  Parlia- 
ment of  England  members  had  not  been  paid.  The 
distinction  of  the  ofl&ce  was  considered  enough.  The  prac- 
tice excluded  the  poor  citizen.  But  members  are  paid  in 
ParKament  now. 

As  far  back  as  the  reign  of  Henry  III  (1265)  the  shires 
and  boroughs  paid  the  expenses  of  the  persons  summoned 
by  the  King  to  his  Court  of  Parliament.  In  the  reign  of 
Edward  II  (1322)  the  salary  <^i  a  knight  was  fixed  at  four 
shillings  a  day,  and  that  of  a  citizen  or  burgher  at  two 
shilHngs  a  day ;  but  the  tax  rate  for  payment  ran  against 


30  Constitution  of  the  United  States 

the  constituents.  In  the  course  of  time  the  practice  of 
allowing  any  compensation  passed  away.  As  the  Reform 
Bill  of  1832  left  the  working  classes  almost  altogether 
without  the  privilege  of  voting,  a  programme  was  drawn 
up  for  numerous  reforms,  which  was  named  ''The  Charter '\ 
and  the  movement  was  called  Chartism.  One  of  the  things 
demanded  was  pay  for  the  members  of  Parliament.  In 
1893  and  again  in  1895  the  House  of  Commons  voted  by 
a  small  majority  for  an  adequate  allowance ;  but  in  1906, 
by  a  vote  of  more  than  three  to  one,  a  definite  salary  of 
three  hundred  pounds  was  fixed.  In  Canada  the  members 
of  both  Houses  receive  $2500  a  year,  with  a  deduction  of 
$15  for  each  day  absent.  In  Australia  each  member  re- 
ceives six  hundred  pounds  a  year.  In  South  Africa  each 
member  receives  four  hundred  pounds  a  year,  less  three 
pounds  for  each  day's  nonat tendance.  In  Argentine  each 
member  receives  1060  pounds  a  year;  and  in  France 
fifteen  thousand  francs. 

The  Articles  of  Confederation  required  (Art.  V,  sec.  3) 
each  State  to  maintain  its  delegates  to  Congress. 

In  1789  the  compensation  of  our  senators  and  represent- 
atives was  fixed  at  $6  for  each  day's  attendance;  in  1815 
at  $1500  a  year;  in  1817  at  $8  a  day;  in  1855  at  $3000  a 
year;  in  1865  at  $5000;  in  1871  at  $7500;  in  1874  it  was 
put  back  to  $5000 ;  in  1907  it  was  made  $7500. 

Madison  thought  it  an  "indecent  thing"  that  congress- 
men should  be  empowered  by  the  Constitution  to  fix  their 
salaries.  After  the  advance  in  181 5  many  of  the  members 
of  the  House  were  defeated  for  reelection.  The  advance 
of  March  3,  1873,  a;ffecting  the  President,  the  Congress, 
the  Cabinet,  the  Supreme  Court,  and  some  other  depart- 
ments, made  on  the  last  day  of  Grant's  first  term  and  oper- 1 
ating  retroactively  during  "the  term  for  which  he  shall 
have  been  elected",  was  denounced  by  the  country  as  a 
"salary  grab."  On  January  20,  1874,  it  was  repealed  "i^ 
to  all  "except  the  President  of  the  United  States  and  the 


Its  Sources  and  Application  31 

Justices  of  the  Supreme  Court",  whose  salaries  the  Con- 
stitution (Notes  82  and  98)  forbids  Congress  to  reduce. 

They  shall  in  all  Cases,  except  Treason,  Felony, 
and  Breach  of  the  Peace,  be  privileged  from  Arrest 
during  their  Attendance  at  the  Session  of  their  re- 
spective Houses,  and  in  going  to  and  returning  from  the 
same ;  ^^* 

^^*  This  privilege,  which  is  given  for  the  despatch  of  public 
business,  does  not  extend  to  the  member's  family.  Once 
in  England  the  privilege  covered  the  family,  the  domestics, 
and  the  property  of  the  member,  in  consequence  of  which 
creditors  and  others  seeking  redress  were  helpless.  In 
the  reign  of  George  III  an  act  of  Parliament  abolished  the 
privilege  as  to  domestic  servants,  lands,  and  goods.  The 
charters  of  the  colonies  did  not  mention  the  privilege.  It 
first  appears  in  this  country  in  the  Constitution  of  Mas- 
sachusetts of  1780. 

The  privilege  from  arrest,  except  for  treason,  felony,  or 
breach  of  the  peace,  was  granted  (Art.  V)  by  the  Articles 
of  Confederation  to  members  of  Congress. 

and  for  any  Speech  or  Debate  in  either  House,  they 
shall  not  be  questioned  ^^  in  any  other  Place. 

^^The  privilege  of  having  debates  unquestioned  was 
denied  to  members  of  Parliament  in  the  reign  of  Eliza- 
beth when  they  began  to  speak  their  minds  freely,  and 
they  were  punished  by  that  ruler  and  her  two  successors, 
but  the  privilege  was  soon  afterwards  firmly  established. 
Hallam  says  that  the  single  false  step  by  Charles  I  which 
made  compromise  impossible  and  civil  war  certain  was 
his  attempt  to  seize  five  members  (Pym,  HoUis,  Hampden, 
Haselrig,  and  Strode)  within  the  walls  of  the  House. 

Hampden  and  his  associates  were  accused  of  high  treason 
''against  the  sovereign  or  the  government,  as  distinguished 
fiom  other  treasons,  of  which  there  were  then  many). 


32  Constitution  of  the  United  States 

Followed  by  a  body  of  armed  men  the  King  left  his  palace 
(1642)  at  Whitehall,  after  having  told  the  Queen  (Henri- 
etta, daughter  of  Henry  IV  of  France,  and  accused  of  hav- 
ing ^'ncited  Charles  to  the  rash  action)  that  he  would  re- 
turn "master  of  my  Kingdom",  and  proceeded  to  the  House 
of  Commons.  Apprised  of  his  approach,  the  House  ordered 
the  accused  members  to'  withdraw.  The  King  entered 
and  told  the  Speaker  that  he  needed  the  chair.  Calling 
for  the  members  wanted  and  hearing  no  response,  ''I  see 
my  birds  are  flown,"  he  said.  He  went  out  in  defeat,  pro- 
testing that  he  had  not  intended  to  use  force.  As  he  re-  | 
turned  he  heard  everywhere  in  the  streets  the  cry  of  "privi- 
lege." Macaulay  says  ("History  of  England '^  Vol.  i, 
p.  107)  that  at  the  very  moment  when  the  subjects  of 
Charles  I  were  returning  to  him  with  feelings  of  affection 
after  a  long  estrangement  "he  had  aimed  a  deadly  blow 
at  all  their  dearest  rights,  at  the  privileges  of  Parhament, 
at  the  very  principle  of  trial  by  jury." 

The  Articles  of  Confederation  provided  (Art.  V)  that 
"freedom  of  speech  and  debate  in  the  legislature  shall 
not  be  impeached  or  questioned  in  any  court  or  place  out 
of  Congress." 

The  privilege  for  "any  speech  or  debate"  was  held  by^ 
the  Supreme  Court  of  the  United  States  to  cover  a  resolu-^  ' 
tion  offered  by  a  member  of  Congress. 

No  Senator  or  Representative  shall,  during  the 
Time  for  which  he  was  elected,  be  appointed  to  any 
civil  Office  under  the  Authority  of  the  United  States, 
which  shall  have  been  created,  or  the  Emoluments 
whereof  shall  have  been  encreased  during  such 
time ;  ^^ 

^^ After    a    senator's    term    began    Congress  increased) 
(1889)  the  emoluments  of  our  Minister  to  Mexico.     Before 
the  expiration  of  his  senatorial  term  the  President  appointed 


Its  Sources  and  Application  33 

him  Minister  to  that  country.  The  Attorney- General 
ruled  that  under  this  provision  he  was  not  ehgible. 

President-elect  Taft  selected  Senator  Knox  to  be  Sec- 
retary of  State  in  his  cabinet.  Then  it  was  found  that 
during  the  senatorial  term  of  Knox  the  emoluments  of  the 
secretaryship  had  been  increased  by  Congress,  which 
rendered  him  ineligible.  Congress  thereupon  qualified 
him  by  reducing  the  emoluments  of  the  office  to  what  they 
were  before. 

One  may  conceive  of  great  abuses  which  might  arise 
did  this  prohibition  not  exist.  Of  course,  after  the  term  of 
a  senator  or  a  representative  has  expired,  he  may  accept 
the  office  created  during  his  term  or  the  office  the  emolu- 
ments of  which  were  increased  while  he  was  in  Congress. 

and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a  Member  of  either  House  during 
his  Continuance  in  Office.^ ^ 

^^  But  few  provisions  in  the  Constitution  were  more 
earnestly  debated  in  the  Constitutional  Convention. 

Hallam  says  that  it  appears  possible  that  persons  in  office 
formed  at  all  times  a  very  considerable  portion  of  the  House 
of  Commons  in  the  time  (1485-1603)  of  the  Tudors.  In 
the  reign  of  Henry  VIII  (i 509-1 547)  most  of  the  members 
of  the  House  of  Commons  held  offices  for  the  appointments 
to  which  they  were  indebted  to  the  King.  Parliament, 
being  thus  interested,  passed  an  act  "releasing  the  King's 
highness  from  all  and  every  sum  of  money"  which  the 
Parliaments  or  his  subjects  had  given  to  him  "by  way  of 
trust  or  loan."  As  mentioned  elsewhere,  the  practice 
of  "borrowing"  from  the  rich  subjects  was  a  common 
practice  of  the  kings  of  those  times,  but  it  was  stopped 
with  the  dethronement  of  James  II  and  the  accepting  by 
William  and  Mary  of  the  Declaration  of  Rights  in  1689. 
Scores  of  other  historical  facts  might  be  given  to 
illustrate  the  meaning  Mng'back  of  the  simple  language 


34  Constitution  of  the  United  States 

of  this  clause.  If  Congress  were  to  become  partly  filled 
with  appointees  of  the  President  to  other  offices  under 
the  United  States,  or  by  holders  through  election  of  other 
offices,  the  independence  of  the  Legislative  Department 
which  the  Constitution  undertook  to  safeguard  would  soon 
be  undermined. 

The  Constitution  of  Georgia  of  1777  declared  that  ''no 
person  shall  hold  more  than  one  office  of  profit  under  this 
State  at  the  same  time."  The  Constitution  of  Maryland 
had  a  similar  provision. 

It  was  forbidden  by  the  Articles  of  Confederation  (Art.  V) 
that  any  delegate  in  Congress  hold  ''any  office  under  the 
United  States  for  which  he,  or  any  other  for  his  benefit, 
receives  any  salary,  fees,  or  emolument  of  any  kind." 

So  this  clause,  like  many  another  in  the  Constitution, 
took  rise  from  colonial  experience. 

Section  7.  All  bills  for  raising  Revenue  shall  origi- 
nate in  the  House  of  Representatives ;  ^^  but  the  Sen- 
ate may  propose  or  concur  with  Amendments  as  on 
other  bills. 

^^  That  is,  money  bills  must  originate  Jn  the  body  then 
elected  directly  by  the  people.  Senators  have  been  so  i 
elected  (Note  183)  since  19 13.  One  of  the  almost  irre- 
pressible confficts  between  the  King  of  England  and  the 
Houses  of  Parliament  was  respecting  the  power  of  raising 
money  for  the  support  of  the  King  and  the  conduct  of  the 
government. 

In  a  Congress   (called  the  Stamp-Act  Congress)  com-  .^ 
posed   of   delegates  from  the   Colonies  a  Declaration  of 
Rights  was  promulgated   in  New  York  on  October  19, 
1765,  which  said: 

"That  it  is  inseparably  essential  to  the  freedom  of  a 
people  and  the  undoubted  right  of  Enghshmen  that  no 
taxes  be  imposed  on  them  bu±  with  their  ovm  consent, 


Its  Sources  and  Application  85 

given  personally  or  by  their  representatives ;  that  the  people 
of  these  Colonies  are  not,  and  from  their  local  circum- 
stances cannot  be,  represented  in  the  House  of  Commons 
in  Great  Britain ;( that  the  only  representatives  of  the  people 
of  these  Colonies  are  persons  chosen  therein  by  themselves, 
and  that  no  taxes  ever  have  been  or  can  be  constitutionally 
imposed  on  them  but  by  their  respective  legislatures; 
that  all  suppHes  to  the  Crown  being  free  gifts  of  the  people, 
it  is  unreasonable  and  inconsistent  with  the  principles 
and  spirit  of  the  British  constitution  for  the  people  of 
Great  Britain  to  grant  to  His  Majesty  the  property  of  the 
Colonists." 

In  the  Declaration  of^P^ights  of  October  14,  1774,  the 
delegates  from  the  several  Colonies  in  Colonial  Congress 
assembled  protested  against  ^^cts  of  Parliament  passed  in 
the  fourth,  fifth,  sixth,  seventh,  and  eighth  years  of  George 
III,  ^' which  imposed  duties  fof  the  purpose  of  raising 
revenue  in  America",  and  th^  condemned  them  as 
measures  -^^  which  demonstrate  a  system  formed  to  enslave 
America."  ,, 

In  the  early  times  in  England  i\e  House  of  Lords  and 
the  House  of  Commons  made  separa^  grants  of  supply  to 
the  King  for  the  maintenance  of  tl\e  government  and 
himself.  Later,  as  the  Commons'  proportion  of  the  taxes 
*  was  greater,  that  House  made  the  grant  with  the  assent 
of  the  Lords.  In  the  reign  of  Henry  VIII  they  joined  in 
the  grants.  But  in  the  last  Parliament  of  Charles  I  the 
grant  recited  that  it  was  made  by  the  Commons.  Since 
then  that  House  originates  money  bills. 

The  Kings  of  England  always  found  need  for  more 
,  money  than  they  got  from  Parliament.  Some  of  the 
^ early  kings,  Henry  III  (i2i$-i272)  and  Edward  I  (1272- 
1307),  for  example,  introduced  the  scheme  of  granting  to 
their  military  tenants  the  privilege  of  knighthood;  but 
tbDse  who  wished  to  decline  the  honor  (costly  to  maintain) 
could  excuse  their  absence  by  a  moderate  fine.     Once  in 


36  Constitution  of  the  United  States 

^  the  reign  of  Elizabeth  (i 558-1603)  and  often  in  the  time 
of  James  I  (1603-16  2  5)  this  ancient  method  of  raising 
money  without  the  aid  of  ParHamentwas  employed. 

Another  lucrative  plan  of  those  two  monarchs  was  to 
grant  exclusive  or  monopoHstic  privileges.  A  monopolist  in 
the  making  of  soap,  for  example,  agreed  to  pay  the  King 
eight  pounds  in  money  ($40)  on  every  ton  of  soap  made,  in  . 
addition  to  ten  thousand  pounds  ($50,000)  for  the  charter 
or  grant  of  the  monopoly.  Almost  every  necessity  was 
under  monopoly,  but  in  1639  the  grants  were  revoked  be- 
cause of  public  displeasure.  Enormous  revenues  flowed  to 
the  monarch  from  such  sources. 

Another  device  of  resourceful  royalty  was  to  borrow 
heavily  from  wealthy  nobles  and  never  (or  seldom)  pay. 
It  was  not  often  that  a  wealthy  man  had  the  temerity  to 
refuse.     Elizabeth    always    discharged    such  obligations. 
In  the  reign  of  James  I  a  forced  loan  of  this  kind  was  frus- 
trated by  the  declaration  of  the  House  of  Commons  that  no 
one  be  bound  against  his  will  to  lend  money  to  the  King. 
While   such   practices   were  believed   to  be  in  violation 
of  Magna  Charta  (12 15),  signed  by  King  John,  Parliament 
made  the  matter  certain  by  requiring  James'  successor, 
Charles  I,  to  assent((i628)  to  the  Petition  of  Right  wherein  ^ 
it  was  said  that  *'no  man  shall  be  compelled  to  make  or    I 
yield  any  gift,  loan,  benevolence  to  or  such  like  charge *;;> 
without  common  consent  by  Act  of  Parliament ')  that  none 
be  called  upon  to  make  answer  for  refusal  so  to  do." 
And  in  1689  William  and  Mary  accepted  the(.Declaration  of 
Rights,  which  prohibited  the  levying  of  money  for  the  use 
of  the  sovereign  without  the  grant  of  Parliament.)    Could 
the  King  raise  money  (which  provides  armies  and  navies)    ^ 
without  the  consent  of  Parliament  there  might  soon  be  n(\^ 
Psrliamrrt     A  dispute  between  Charles  I  and  Parliament 
invohdng  this  money  question  and  some  others  was  earned 
into  civil  war  and  the  sovereign's  head  was  severed  by  t^ie 
executioner. 


Its  Sources  and  Application  37 

Mentioning  that  in  [Tudor  and  Stuart  times  "the  crown 
was  always  tending  to  bankruptcy  and  always  requiring  help 
of  Parliament '5  an  English  writer  (Jenks'  ''Constitutional 
Experiments  of  the  Commonwealth",  p.  39)  states:  ''It 
might  almost  be  said  that  the  development  of  the  English 
Constitution  is  due  to  the  fall  in  the  value  of  money.  It 
is  certain  that  many  of  the  constitutional  crises  of  English 
history  were  brought  about  by  that  fact."  ^It  has  been 
stated  that  the  value  of  money  in  the  time  of  Ehzabeth, 
whose  reign  ended  in  1603,  was  about  twelve  times  what 
it  is  to-day. } 

The  foregoing  references  to  historic  facts  show  why  the 
framers  of  the  Constitution  so  carefully  entrusted  the 
raising  and  expending  of  the  public  treasure  to  the  repre- 
sentatives elected  by  the  direct  vote  of  the  people.  It 
was  the  desire  not  only  that  pubHc  funds  should  not  be 
wasted,  but  also  that  they  should  pever  be  diverted  to 
uses  dangerous  to  the  government. 

A  "bill  for  raising  revenue"  is  onefor  levying  taxes 
in  the  strict  sense  of  the  word  and  not  one  which  inci- 
dentally  brings  in  moneys  Thus  a  currency  act  of  Congress 
which,  to  meet  ex^fenses,  put  a  tax  on  notes  of  banking 
associations  in  circulation  was  held  by  the  Supreme  Court 
not  to  be  a  revenue  bill  which  should  have  originated  in 
the  House  of  Representatives. 

Under  the  Canadian  Constitution  bills  for  raising  revenue 
originate  in  the  House  of  Commons,  but  not  before  recom- 
mendation by  the  Governor  General.  The  Austrahan 
Constitution  forbids  that  the  Senate  either  originate  or 
amend  money  bills. 

In  Brazil  the  Chamber  of  Deputies  (elected  by  the 
people)  originates  all  bills  for  raising  revenue,  and  so  does 
the  House  of  Deputies  in  Chile. 

The  Constitution  of  France  permits  the  Senate  to  origi- 
nate all  but  revenue  bills,  which  must  first  pass  the  Cham- 
ber of  Deputies. 


38  Constitution  of  the  United  States 

Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  be- 
come a  Law,  be  presented  to  the  President  of  the 
United  States ;  If  he  approve  he  shall  sign  it,  but  if  not 
he  shall  return  it,  with  his  Objections  to  that  House  in 
which  it  shall  have  originated,  who  shall  enter  the  Ob- 
\jections  at  large  on  their  Journal,  and  proceed  to  re-( 
consider  it.  If  after  such  Reconsideration  two  thirds  1 
of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be  I 
sent,  together  with  the  Objections,  to  the  other  House, 
by  which  it  shall  likewise  be  reconsidered,  and  if  ap- 
proved by  two  thirds  of  that  House,  it  shiill  become  a 
Law.  But  in  all  such  Cases  the  Votes  of  both  Houses 
shall  be  determined  by  yeas  and  Nays,  and  the 
Names  of  the  Persons  voting  for  and  against  the  Bill 
shall  be  entered  on  the  Journal  of  each  House  re- 
spectively. If  any  Bill  shall  not  be  returned  by  the 
President  within  ten  Days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  Same  shall 
be  a  Law,  in  like  Manner  as  if  he  had  signed  it,  unless 
the  Congress  by  their  Adjournment  prevent  its  Re- 
turn, in  which  Case  it  shall  not  be  a  Law.^^ 

3^  That  paragraph  was  designed  to  prevent  any  question 
as  to  how  and  by  whom  a  bill  may  be  passed  into  a  law. 

Could  the  House  of  Commons  enact  a  law  without 
the  concurrence  of  the  Lords?  Could  it  do  so  without 
the  signature  of  the  King?  Could  both  Houses  ignore  the 
King  and  make  a  law?  Could  the  King  prevent  at  will 
the  taking  effect  of  a  bill  passed  by  Parliament?  Those 
were  questions  which  had  often  stirred  England  deeply. 

A  bill  returned  by  the  President  ''with  his  objections" 

to  the  House  in  which  it  originated  is  said  to  have  been 

:  vetoed,  ^nt  the  word  ^'veto"  does  not  appear  in  the  Con- 


Its  Sources  and  Application  39 

stitution.  In  most  of  the  colonies  the  governors  had  the 
power  to  veto  legislation  and  their  misuse  of  it  was  one 
of  the  grievances  causing  the  Revolution.  Massachusetts 
was  the  first  of  the  original  States  to  grant  (1780)  the  veto 
power  to  the  governor.  This  power  in  the  executive  officer 
is  carried  down  in  our  country  to  the  mayors  of  cities,  who 
are  generally  authorized  to  veto  ordinances.  Jt  is  the 
popular  belief  that  the  interposition  of  the  veto  is  a  salu- 
tary (and  indispensable)  check  upon  hasty  or  otherwise 
objectionable  legislation. 

Many  bills  passed  by  the  two  Houses  of  Congress  have 
been  vetoed  by  the  President  because  he  regarded  them  as 
contrary  to  some  provision  of  the  Constitution,  or  at 
variance  with  the  policy  or  promise  of  his  political  party, 
or  against  sound  financial  principles,  or  as  inopportune 
or  injudicious.  Although  the  language  of  the  Constitution 
—  '*  if  he  approve  it  he  shall  sign  it,  but  if  not  he  shall  return 
it  with  his  objections" — places  no  limitation  upon  the 
veto  power,  it  has  been  contended  that  the  President  really 
has  authority  to  veto  only  bills  which  he  considers  ob- 
noxious to  some  Constitutional  provision.  Others  have 
argued  that  the  power  should  be  exercised  only  to  prevent 
encroachments  by  Congress  upon  the  domain  of  the  Execu- 
tive. But  Madison's  writinp^s  show  that  the  veto  was  to 
be  ^'a  check  to  the  instability  in  legislation,  which  had  been 
tound  the  besettinp;  mhrmily  of  populai -gm^nments^ 
and  been  sufficiently  exempUfied  among  ourselves  in  the 
legislatures  of  the  States."  Jefferson  said  that  the  veto 
was  to  protect  from  '^y^/''^"  hv  ^^^if^^^gg  (i)  "the  rights 
of  the  Executive",  (2)  those  of  the  Judiciary,  and  (3)  those 
of  "the  States  and  State  Legislatures."  The  first  bill  (of 
two)  vetoed  by  Washington  (April,  1792)  was  for  appor- 
tioning members  of  the  House  of  Representatives  (Note  10) 
according  to  population.  He  beheved  that  the  apportion- 
ment proposed  was  unfair.  When  the  bill  was  returned 
to  the  House  of  Representatites  with  his  objections,  "a  few 


40  Constitution  of  the  United  States 

of  the  hottest  friends  of  the  bill  expressed  passion,"  wrote 
Jefferson,  *'but  the  majority  were  satisfied,  and  both  in 
and  out  of  doors  it  gave  pleasure  to  have  at  length  an  in- 
stance of  the  negative  being  exercised."  Adams,  Jefiferson, 
John  Quincy  Adams,  Van  Buren,  WilHam  Henry  Harrison, 
Taylor,  Fillmore,  and  Garfield  never  vetoed  a  bill  passed 
by  Congress.  Generally,  the  other  Presidents  vetoed  but 
few.  Washington  vetoed  2 ;  Madison,  6 ;  Monroe,  i ; 
Jackson,  9 ;  Tyler,  8 ;  Polk,  3  ;  Pierce,  9 ;  Buchanan,  7  ; 
Lincoln,  3  ;  Johnson,  22  ;  Grant,  46 ;  Hayes,  8 ;  Arthur,  4 ; 
Cleveland  (first  term),^,^a[,  many  of  which  were  private 
pension  bills ;  Benjamin  Harrison,  19 ;  Cleveland  (second 
term),  42;  McKinley,  6;  Roosevelt,  40;  Taft,  26,  and 
Wilson,  26. 

Except  in  times  of  unusual  feeling,  or  when  a  bill  of  extra-  A 
ordinary  importance  has  been  involved.  Congress  has  but 
seldom  repassed  a  measure  over  the  veto  by  the  President. 
Much  deference  is  shown  by  the  Legislative  Department 
of  the  government  to  the  opinion  of  the  Executive  Depart- 
ment, to  which  the  Constitution  commits  a  share  of  the 
law-making  power. 

But  many  vetoed  bills  have  been  repassed  by  Congress 
and  have  so  become  laws  despite  the  veto.     Many  others 
Congress  has  tried  to  repass  and  failed  because  it  could  not 
muster  a  two-thirds  vote  in  each  House  —  not  two  thirds , 
of  the  membership  of  each  House,  the  Supreme  Court! 
held  (1919)  where  that  claim  was  made  by  a  citizen  affected 
by  a  law,  but  two  thirds  of  the  members  present,  assuming  ^1 
the  presence  of  a  quorum  or  majority  necessary  to  do  busi-  \ 
ness.     The  Reconstruction  acts  and  many  others  affecting 
the  return  of  the  southern  States  after  the  Civil  War  were 
quickly  passed  over  the  veto  of  President  Johnson  as  though 
Congress  found  pleasure  in  domination.     Generally,  how-v 
ever,  the  power  of  veto  in  the  President  has  been  a  positive  J 
quantity  in  legislation.      ''A  power  of  this  nature  in  the 
Executive,"  wrote  Alexander  Hamilton  in  "The  Federal- 


Its  Sources  and  Application  41 

ist"  (No.  LXXIII),  "will  often  have  a  silent  and  unper- 
ceived,  though  forcible,  operation."  That  statement  has 
been  amply  justified  by  experience. 

The  sovereigns  of  England,  says  Bagehot,  "must  sign 
their  own  death  warrant  if  the  two  Houses  send  it  to  them." 
The  King  still  has  legally  the  veto  power,  but  he  has  not 
exercised  it  since  the  accession  of  the  House  of  Hanover 
(George  1,1714). 

The  colonists  had  often  felt  the  evils  of  slow,  uncertain, 
or  capricious  legislation.  "He  [George  HI]  has  refused," 
says  the  Declaration  of  Independence,  "his  assent  to  laws 
the  most  wholesome  and  necessary  for  the  public  good. 
He  has  forbidden  his  governors  to  pass  laws  of  in^ediate 
and  pressing  importance  unless  suspended  in  their  opera- 
tions, till  his  assent  should  be  obtained.  ...  He  has 
refused  to  pass  other  laws  for  the  accommodation  of  large 
districts  of  people.  ...  He  has  obstructed  the  adminis- 
tration of  justice  by  refusing  his  assent  to  laws  for  estab- 
lishing judiciary  powers." 

Therefore  the  Constitutional  Convention  formulated  a\ 
method  which  at  once  checks  haste  or  unwisdom  in  the  \ 
Legislative  Department  and  obstructiveness  in  the  Execu-  "^ 
tive. 

Our  Constitutional  provision  has  been  adopted  sub- 
stantially by  many  nations.  The  Constitution  of  Chile 
(1833,  which  has  been  frequently  amended)  provides  that 
the  President  must  return  the  vetoed  bill  within  two  weeks ; 
and  that  the  two  Houses  of  Congress  may  repass  it  by  a 
two-thirds  vote.  Under  the  Constitution  of  Canada  (1867) 
the  Enghsh  sovereign  may  veto  ("disallow")  within  two 
years  an  act  of  the  Dominion  Parliament,  even  though  the 
Governor  General  has  approved  it  and  it  has  gone  into 
effect. 

The  Australian  Constitution  provides  for  disallowance 
or  veto  by  the  sovereign  withiif  one  year  of  a  bill  approved 
by   the    Governor   General.     But  both  in   Canada  and 


42  Constitution  of  the  United  States 

Australia  the  Governor  General  may  veto  the  bill  or  with- 
hold assent  for  the  sovereign's  pleasure.  But  of  course  in 
AustraHa  and  Canada  there  is  no  way  to  overcome  the 
obstruction  of  a  veto. 

The  foregoing  references  to  other  constitutions  are  made 
to  illustrate  how  widely  extended  has  been  the  influence 
of  this  provision  of  our  Constitution  for  careful  and  orderly^, 
legislation. 

Every  Order,  Resolution,  or  Vote  to  which  the  Con- 
ciirrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  Adjourn- 
ment) shall  be  presented  to  the  President  of  theK 
United  States;  and,  before  the  Same  shall  take 
Effect,  shall  be  approved  by  him,  or,  being  disap- 
proved by  him,  shall  be  repassed  by  two  thirds  of 
the  Senate  and  House  of  Representatives,  according 
to  the  Rules  and  Limitations  prescribed  in  the  Case 
of  a  BHU' 

^^  That  is  designed  to  prevent  Congress  from  ignoring 
or  evading  the  constitutional  prerogative  of  the  President 
and  in  disregard  of  him  enacting  laws  under  the  guise  of 
orders  or  resolutions.  The  historic  tendency  of  one  depart- 
ment of  government  to  usurp  the  functions  or  prerogatives 
of  another  was  clearly  understood  by  the  authors  of  the 
Constitution. 

But  a  resolution  proposing  an  amendment  to  the  Consti- 
tution of  the  United  States  (Note  1 29)  is  not,  the  Supreme 
Court  has  held,  an  act  of  legislation,  and  therefore  it  need 
not  be  submitted  to  the  President  for  signature. 

Although  the  signature  of  the  President  is  not  necessary 
to  a  congressional  resolution  proposing  an  amendment, 
President  Lincoln  signed  the  joint  resolution  "  inadver- 
tently'^  as  it  was  said,  proposing  the  Thirteenth  Amerid- 
merit-     The  re:.oiu' iv; -.  tm;,,>   -.'.n.'  i;.;    ..:■' leenth  Ameiid- 


Its  Sources  and  Application  43 

ment  was  not  submitted  to  President  Johnson,  who  pro- 
tested on  that  account,  and  who  said  that  an  Amendment 
should  not  be  submitted  to  a  State  legislature  or  State 
convention  which  had  not  been  chosen  by  the  people  since 
the  proposal  to  amend  was  made.  v 

Section  8.  The  Congress  shall  have  Power  ^° 

^°  By  this  section  the  sovereign  people,  in  whom  re- 
sides all  authority,  conferred  upon  Congress  exclusive 
power  to  deal  with  twenty  subjects  properly  within  the 
sphere  of  National  authority;  and  they  concluded  by 
authorizing  it  to  make  all  laws  necessary  to  effectuate 
those  powers.  -Under  the  Articles  of  Confederation  the 
State,  which  *' retains  its  sovereignty,  freedom,  and  in- 
dependence", exercised  too  many  such  powers.  In  trade 
and  commerce,  and  in  other  ways^  the  States  treated  one 
another  as  foreign  countries,  imposing  duties  and  other 
taxes  and  enacting  much  selfish  legislation.  After''*>52 
years  of  experience  it  would  be  difficult  to  improve  upon 
the  following  enumeration  of  National  powers.  Every 
constitution  that  has  been  drawn  since,  those  of  France, 
Switzerland,  Chile,  Brazil,  Argentine,  New  Zealand,  Canada, 
Australia,  South  Africa,  and  others,  have  followed  quite 
closely  this  chart  of  legislative  National  powers.  It  will 
be  at  once  interesting  and  useful  to  study  it  in  detail. 

To  lay  and  collect  Taxes,  Duties,  Imposts  and  Ex- 
cises,^^ 

^^  Reference  has  been  made  (Note  lo)  to  the  failure  in 
operation  of  the  *'  common  treasury  "  created  by  the  Articles 
of  Confederation,  which  was  to  be  ^'supphed  by  the  several 
States."  Often  a  State  failed  to  provide  its  supply  and 
of  course  the  National  Government  was  thereby  hampered 
and  sometimes  crippled.  Now  the  Nation  would  raise 
necessary  money  itself.  In  the  Constitutional  Convention 
there  was  question  of  the  meaning  of  *_' duties",  *' imposts", 


44  Constitviion  of  the  United  States 

and  "excises."  The  comprehensive  word  "taxes"  would 
have  been  enough.  By  the  use  of  that  language  the  pur- 
pose was  manifested  to  authorize  the  Nation  to  raise  needed 
money  by  any  of  the  known  methods  of  taxation  —  "a 
power  of  vast  extent",  wrote  President  Monroe,  "not 
granted  by  the  Confederation,  the  grant  of  which  formed  i 
one  of  the  principal  inducements  to  the  adoption  of  this/ 
Constitution."  1 

In  the  enumeration  of  National  powers  the  first  named 
in  the  original  draft  and  in  the  suggestions  brought  before 
the  Constitutional  Convention  was  the  power  to  lay  taxes 
and  raise  money.  "Money  is  one  of  the  essential  agencies 
of  Government,"  wrote  Hamilton.  "Without  it  no  Govern- 
ment can  exist,  and  without  the  power  to  raise  it,  it  cannot 
be  had." 

While  the  direct  break  with  England  was  caused  by  tax- 
ation by  the  Stamp  Act  of  Parhament  (1765),  which  re- 
quired the  use  in  the  Colonies  of  paper  bearing  costly  stamps 
for  notes,  bonds,  deeds,  wills,  and  other  documents,  the 
frame  of  mind  to  revolt  had  been  developed  in  the  colonists 
by  over  a  century  of  oppressive  legislation.  Colonial  com- 
merce had  been  hindered  by  the  Navigation  acts  of  1660 
and  1663,  requiring  that  buying  and  selling  be  done  in  Eng- 
land and  that  goods  be  moved  in  English  ships;  by  the 
Act  of  1732,  prohibiting  trade  in  woolens  among  the  Col- 
onies, a  trade  which  was  growing  rapidly ;  by  the  Molasses 
Act  of  1733,  placing  a  duty  or  tax  on  all  rum,  molasses, 
and  sugar  imported  into  any  English  colony,  a  heavy  blow  to 
a  great  trade  with  Spanish  possessions ;  by  the  Act  of  1750, 
prohibiting  the  sending  of  pig  iron  to  England  and  forbidding 
the  manufacture  of  certain  iron  articles  at  home,  a  manufac- 
ture which  had  already  become  important ;  by  the  Sugar  Act 
of  1764,  restricting  trading  with  the  West  Indies  in  lumber, 
food  stuffs,  and  some  other  articles ;  and  by  an  act  in  the 
same  year  legalizing  writs  of  assistance,  by  which  revenue 
oiiicers  of  the  Crown  (seeking  to  prevent  smugghng  In  vio- 


Its  Sources  and  AppHcation  45 

lation  of  the  restrictive  laws)  made  .searches  and  seizures 
and  were  empowered  to  call  citizenb  to  their  aid.  When, 
therefore,  the  English  Government  attempted  by  the  Stamp 
Act  to  impose  upon  the  Colonies  a  part  of  the  tax  burden 
of  the  French  and  Indian  War  (the  name  of  the  American 
section  of  a  world-wide  engagement  between  England  and 
France),  after  they  had  spent  eleven  million  dollars  and 
given  up  thirty  thousand  lives,  the  step  was  denounced 
in  a  Colonial  Declaration  of  Rights  (1765)  by  a  Continen- 
tal Congress  as  part  of  a  policy  *'to  enslave  America." 
That  declaration  said  that  as  the  colonists  were  not 
represented  in  Parliament,  and  by  reason  of  distance  could 
not  be,  no  tax  by  Parliament  could  be  imposed  upon  them. 
That  could  be  done  only  by  their  elected  representatives 
in  the  colonial  assemblies  or  legislatures. 

Resistance  to  the  Stamp  Act  practically  nulHfied  iL 

to  pay  the  Debts  and  provide  for  the  common  D^ence 
and  general  Welfare  of  the  United  States ;  ^^ 

^^  Those  are  the  three  purposes  for  which  the  money 
raised  may  be  spent  —  and  for  no  others.  The  power  ^'to 
lay  and  collect  taxes"  is  not  unlimited.  It  is  restricted 
to  securing  money  *'to  pay  the  debts  and  provide  for  the 
common  defence  and  general  welfare  of  the  United  States." 
Beyond  those  purposes  money  cannot  be  raised  and  spent 
by  Congress. 

President  Monroe  vetoed  a  bill  for  the  improvement  of 
the  Cumberland  Road  because  he  did  not  beheve  the  work 
to  come  within  this  clause.  President  Jackson,  for  the  like 
reason,  vetoed  every  bill  for  pubHc  improvements  that 
was  not  clearly  for  National  welfare,  as  distinguished 
from  local  or  State  advantage.  *'We  are  in  no  danger," 
said  he,  ''from  violations  of  the  Constitution  from  which 
encroachments  are  made  upon  the  personal  rights  of  the 
citizen.  .  .  .  But  against  the  clangers  of  unconstitutional 
acts  which,  instead  of  menacing  the  vengeance  of  offended 


46  Constitution  of  the  United  States 

authority,  proffer  locil  advantages  and  bring  in  their  train 
the  patronage  of  the  government,  we  are,  I  fear,  not  so  safe." 

River  and  harbor  bills  were  vetoed  by  Presidents  Tyler, 
Polk,  Pierce,  Grant,  Arthur,  and  Cleveland.  A  bill  appro- 
priating $19,000,000  was  passed  over  President  Arthur's 
veto  in  1882,  and  a  bill  which  President  Cleveland  vetoed 
in  1896,  appropriating  $80,000,000,  was  repassed  by  Con- 
gress. The  Presidents  regarded  the  appropriations  as 
largely  for  local  rather  than  National  purposes,  and  there- 
fore, as  President  Arthur  put  it,  *' beyond  the  powers  given 
by  the  Constitution  to  Congress  and  the  President."  De- 
claring that  when  the  citizens  of  one  State  found  that 
money  of  all  the  people  was  being  appropriated  for  local 
improvements  in  another  State  they  naturally  ''seek  to 
indemnify  themselves  ...  by  securing  appropriations  for 
similar  improvements",  he  concluded : 

''Thus  as  the  bill  becomes  more  objectionable,  it  secures 
more  support." 

President  Cleveland  deplored  "the  unhappy  decadence 
among  our  people  of  genuine  love  and  affection  for  our 
Government  as  the  embodiment  of  the  highest  and  best 
aspirations  of  humanity,  and  not  as  the  giver  of  gifts," 

It  is  a  question  under  discussion  to-day  whether  the  de- 
sire of  communities  and  States  to  share  in  congressional 
appropriations  from  the  National  treasury  has  not  operated 
to  extend  unconstitutionally  National  power  and  weaken 
correspondingly  the  constitutional  authority  of  the  States. 

On  this  subject  President  Harding  said  in  192 1 : 

"Just  government  is  merely  the  guarantee  to  the  people 
of  the  right  and  opportunity  to  support  themselves.  The 
one  outstanding  danger  of  to-day  is  the  tendency  to  turn 
to  Washington  for  the  things  which  are  the  tasks  or  the 
duties  of  the  forty-eight  commonwealths." 

but  all  Duties,  Imposts  and  Excises  shall  be  uni- 
form throughout  the  United  States ;  ^^ 


Its  Sources  and  Application  47 

^^This  prevents  preference  to  one  State  or  locality  to 
the  prejudice  of  another.  Otherwise,  such  oppressive  in- 
equalities might  exist  as  to  affect  the  pursuits  and  employ- 
ments of  the  people.  The  agriculture  of  one  State  or  sec- 
tion might  be  heavily  burdened  to  the  upbuilding  of  that 
in  another.  So  of  commerce.  So  of  manufacture.  The 
rivalries  of  States  under  the  Articles  of  Confederation  had 
taught  a  lesson. 

To  borrow  Money  on  the  credit  of  the  United 
States  ;^^ 

^^  In  addition  to  raising  funds  by  the  various  forms  of 
taxation  shown  in  the  preceding  paragraph,  Congress  is 
authorized,  when  the  present  resources  of  the  Nation  are 
insufficient,  to  borrow  on  its  credit  —  that  is,  to  raise  money 
upon  the  resources  and  paying  power  of  future  years.  Even 
if  sufficient  funds  could  be  raised  at  once  for  a  war  or  other 
great  emergency,  it  would  not  be  fair  to  lay  the  burden 
wholly  upon  the  present  generation.  Therefore  Congress 
raises  part  of  needed  funds  by  heavy  income  taxes,  by  stamp 
taxes  on  many  kind  of  sales  and  other  transactions,  and  by 
various  sorts  of  special  taxes  devised  for  the  emergency 
and  removed  when  it  has  passed.  But  it  transfers  a  part 
of  the  burden  to  future  generations  by  the  issue  of  bonds, 
which  are  like  the  promissory  note  of  a  person,  a  simple 
statement  that  at  a  time  named  the  United  States  will 
pay  to  the  bearer  a  specified  amount  of  money,  with  interest 
paid  twice  a  year  in  the  meanwhile.  The  people  at  large 
buy  those  bonds  as  an  investment,  but  the  taxes  out  of 
which  the  Nation  finally  pays  the  holder  of  the  bond  or 
note  are  collected  in  later  years  and  generally  from  a  later 
generation. 

Thus,  there  are  bonds  still  outstanding  which  cover  part 
of  the  debt  incurred  in  the  Civil  War.  That  debt  reached 
its  highest  in  August,  1865,  when  it  was  $2,756,431,571. 
The  report  of  the  Treasurer  of  the  United  States  for  19 19 


48  Constitution  of  the  United  States 

showed  an  estimated  gross  cost  of  the  World  War  to  June  30 
of  that  year  as  $30,177,000,000.      »-. 

The  Articles  of  Confederation  forbade  Congress  to  borrow 
money  or  "emit  bills"  unless  *'nine  States  assent  to  the 
same."  It  was  too  often  impossible  to  secure  the  support 
of  that  many.  Hence  this  National  power  in  our  Consti- 
tution, which  is  entirely  independent  of  State  will. 

In  the  Constitutional  Convention  the  words  "or  emit 
bills",  following  the  word  "money"  in  the  foregoing  clause, 
were  stricken  out.  Bills  of  credit  or  paper  money  had  been 
the  bane  of  the  Confederation  and  the  States.  Madison 
raised  the  question  whether  it  would  not  be  enough  to 
forbid  that  such  bills  be  made  a  legal  tender,  that  is, 
equivalent  to  gold  or  silver  coin.  He  thought  that  would 
check  the  paper-money  evil.  Seventy-five  years  thereafter 
(February,  1862)  the  question  stirred  the  country  when 
Congress  issued  $150,000,000  of  paper  money  known 
(because  of  the  color)  as  "greenbacks", 'which  were  made 
"a  legal  tender  in  payment  of  all  debts,  pubHc  and  private, 
within  the  United  States."  7  A  woman  who  had  before 
the  passage  of  this  Act  become  bound  to  pay  a  stated 
number  of  dollars  in  what  was  at  that  time  the  money 
of  the  United  States  tendered  "greenbacks"  (worth  less 
than  coin),  which  were  refused.  When  the  case  reached 
the  Supreme  Court  of  the  United  States,  Salmon  P. 
Chase,  who  as  Secretary  of  the  Treasury  in  Lincoln's 
Cabinet  had  advocated  the  law,  had  been  made  Chief 
Justice.  In  an  opinion  written  by  him  (upon  fuller  study, 
as  he  explained)  the  Act  (and  one  of  1863)  was  held 
(1869)  beyond  the  constitutional  power  of  Congress,  the 
chief  ground  being  that  the  power  of  Congress  could  not 
be  implied,  and  that  the  acts  of  Congress  could  not  apply 
to  debts  contracted  before  their  passage.  Soon  after  the 
Greenback  Case  was  decided,  the  Supreme  Court  was  en- 
larged (Note  97)  from  seven  judges  to  nine.  In  1872  two 
similar  cases  were  disposed  of  by  the  Court,  one  involving 


Its  Sources  and  Application  49 

a  debt  contracted  before  the  acts  of  Congress  and  one  an 
obligation  arising  subsequently  thereto.  The  Supreme 
Court  overruled  its  decision  in  the  first  case  and  held  that 
the  war  powers  granted  to  Congress  (Notes  55  and  56)  by 
the  Constitution  warranted  the  legislation. 

Next  the  question  came  up  whether  Congress  could  issue 
legal  tender  paper  in  time  of  peace,  as  well  as  in  time  of  war. 
In  1878  it  passed  such  an  act.  The  other  cases  had  been 
rested  by  the  Supreme  Court  on  the  war  power  of  Congress. 
It  was  believed  by  many  that  the  Supreme  Court  could  go 
no  further.  But  in  the  last  Legal  Tender  Case  (1884)  it  held 
that,  whether  in  peace  or  war,  when  the  exigency  is  so  great, 
owing  to  ''unusual  and  pressing  demands  on  the  resources 
of  the  government,  or  of  the  inadequacy  of  the  supply  of 
gold  and  silver",  that  it  is  expedient  to  resort  to  such  means, 
the  question  of  exigency  is  poHtical  and  not  judicial,  and 
therefore  to  be  determined,  not  by  the  courts,  but  by  Con- 
gress. The  Court  said  that  y  the  power  to  make  the  notes 
of  the  Government  a  legal  tender  jin  payment  of  private 
debts^  is  "one  of  the  powers  belonging  to  sovereignty  in 
other  civilized  nations."  Therefore,  as  the  power  is  not 
withheld  from  Congress  by  the  Constitution,  the  existence 
of  it  is  necessarily  implied.  This  legal  tender  paper,  after 
being  in  use  seventeen  years,  during  which  it  was  below 
the  value  of  gold  coin  (it  requiring  at  one  time  $2.85  of 
paper  money  to  equal  one  dollar  in  gold),  was  redeemed, 
beginning  January  i,  1879,  under  "an  Act  to  provide  for 
the  resumption  of  specie  payments"  passed  in  1875  and  . 
directing  the  Secretary  of  the  Treasury  to  "redeem,  in 
coin,  the  United  States  legal- tender  notes  then  outstanding  | 
on  their  presentation  for  redemption."  Prices  and  wages 
had  been  so  high  during  the  time  of  paper  money  that  the 
Greenback  Party  was  organized  in  1874  to  oppose  the  re- 
sumption of  specie  payments. 

In  1 92 1  the  Supreme  Court,  following  the  foregoing  case, 
upheld  an  act  of  Congress  creating  a  Federal  Land  Bank 


50  Constitution  of  the  United  States 

in  each  of  the  twelve  districts  into  which  it  divided  the 
United  States.  In  addition  to  providing  ''capital  for  agri- 
cultural development"  the  plan  was  *'to  create  government 
depositaries  and  financial  agents  for  the  United  States." 
The  latter  undertaking  was  clearly  within  National  power. 

The  foregoing  history  is  detailed  as  one  of  almost  count- 
less illustrations  of  the  expansiveness  of  our  Constitution 
and  of  the  practical  construction  which  the  Supreme  Court 
has  employed  to  fit  it  to  ''new  occasions"  and  ''new  du- 
ties." 

Notwithstanding  the  redemption  in  specie  of  the  paper 
money  of  the  Civil  War,  the  Act  of  Congress  of  February 
25,  1862,  as  revised  down  to  March  3,  1863,  is  still  effective, 
declaring  that  "United  States  notes  shall  be  lawful  money, 
and  a  legal  tender  in  payment  of  all  debts,  public  and  pri- 
vate, within  the  United  States,  except  for  duties  on  imports 
and  interest  on  the  public  debt.'.';  ;  ;  * 

To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  tribes  ;^^ 

^^  This  is  called  the  commerce  clause,  second  in  im- 
portance to  no  other  provision  in  the  Constitution.  The 
delegates  to  the  Constitutional  Convention  from  the  south- 
ern States  voted  for  it  in  return  for  the  first  clause  of  Sec-  \ 
tion  9  (Note  61),  which  the  delegates  from  the  North  ac-  w 
cepted  in  the  beUef  that  slavery  was  already  going  out  and 
would  soon  be  extinct. 

This  clause  put  an  end  to  the  taxes,  duties,  and  other 
burdens  which  the  States  had  imposed  under  the  Articles 
of  Confederation  upon  one  another's  trade  and  activities. 
A  writer  on  the  Constitution,  who  served  as  Justice  of  the 
Supreme  Court  and  therefore  had  an  unusual  opportunity 
to  observe,  expressed  the  opinion  that  were  it  not  for  the 
commerce  clause  the  States  would  long  since  have  wrecked 
the  Union. 

The  commerce  clause  has  been  a  barrier  to  the  activ- 

\ 


Its  Sources  and  Application  51 

ities  of  States  in  more  than  two  thousand  cases  that 
have  reached  the  courts  of  last  resort  in  the  several 
States  and  the  Supreme  Court  of  the  United  States.  Tax 
laws,  license  laws,  and  regulative  laws  of  infinite  variety 
enacted  by  State  legislatures  have  been  held  invalid  under 
this  clause  as  interfering  with  the  free  flow  of  interstate  com- 
merce. And  so  of  State  statutes  intended  to  promote  local 
prosperity,  as  an  act  prohibiting  pipe-Kne  companies  from 
transporting  oil  except  between  points  within  the  State. 

After  the  Constitution  was  adopted  and  while  it  was 
before  the  conventions  of  the  States  for  ratification^  Wash- 
ington wrote  to  Lafayette  that  his  own  State  had  recently 
tried  to  pass  ''some  of  the  most  extravagant  and  prepos- 
terous edicts  on  the  subject  of  trade"  that  had  ever  been 
written.  Under  the  Articles  of  Confederation  Rhode  Island 
met  all  its  expenses  out  of  the  duties  which  it  levied  at 
one  port  on  the  commerce  entering  from  other  States.  Nec- 
essaries paid  oppressive  duties  before  entering  New  York 
City.  Examples  of  this  kind  are  too  many  to  be  enu- 
merated. 

But  with  years  and  experience  the  beUef  has  grown  that 
while  the  citizen  of  the  State  may  naturally  favor  develop- 
ment at  home,  the  same  person  as  a  citizen  of  the  Nation 
must  take  into  account  the  welfare  of  all  the  States.  The 
advancement  of  a  State  is  a  National  as  well  as  a  local  bene- 
fit, and  the  advantages  of  that  advancement  should  not 
accrue  to  the  State  alone. 

The  commerce  clause  is  said  to  have  been  suggested  by 
James  Monroe  of  Virginia,  afterwards  President,  who  be- 
lieved National  regulation  ''necessary  to  preserve  the 
Union;  without  it,  it  will  infalHbly  crumble  to  pieces." 
As  a  member  from  1 783  to  1 786  of  the  Congress  under  the 
Articles  of  Confederation,  he  endeavored  to  secure  for 
Congress  the  power  to  regulate  commerce  and  thereby 
remove  what  he  considered  th«  chief  defect  in  the  existing 
government. 


IS 


a 

52  Constitution  of  the  United  States 

Commerce,  said  the  Supreme  Court,  in  an  early  case, 
''comprehends  traffic,  trade,  navigation,  communication, 
the  transit  of  persons  and  the  transmission  of  messages 
by  telegraph  —  indeed,  every  species  of  commercial  inter- 
course/' 

In  1887  Congress,  in  pursuance  of  this  clause,  passed  the 
Act  to  Regulate  Commerce,  commonly  called  the  Inter- 
state Commerce  Law.  It  has  been  frequently  amended 
and  improved  as  experience  has  suggested.  Railway  lines, 
steamship  lines,  express  companies,  oil-pipe  Hues,  telegraph 
lines  and  telephone  lines,  and  wireless  transmission  of  mes- 
sages are  brought  within  the  control  of  the  Interstate  Com- 
merce Commission,  a  tribunal  now  (1922)  grown  from  three 
to  eleven  members,  created  by  the  Act  with  power  to  pre- 
scribe what  charges  the  pubHc  shall  pay  and  with  authority 
otherwise  to  regulate  the  business  practices  of  railway  com- 
panies and  others  engaged  in  interstate  commerce. 

In  1890  Congress  enacted  under  this  clause* the  Sherman 
Anti-Trust  Law,  providing  heavy  penalties  for  the  offence 
of  conspiring  or  combining  to  prevent  competition  among 
merchants  and  others  moving  commodities  in  interstate 
commerce.  That  was  supplemented  by  the  Clayton  Law 
of  October  15,  1914;  and  on  September  26,  1914,  the  Fed- 
eral Trade  Commission  Law,  to  prevent  "unfair  methods 
of  competition  in  interstate  commerce  ",  was  passed. 

Congress  has  also  enacted  numerous  laws  requiring  auto- 
matic couplers  for  railway  cars,  air  brakes,  and  other  safety 
appliances  on  the  trains  of  railways  engaged  in  interstate 
commerce.  It  enacted  also  (1907)  a  law  limiting  the  hours 
of  service  of  employees  engaged  in  interstate  commerce, 
and  the  Federal  Employers'  Liability  Act  (1908),  fixing  the 
liability  of  employers  to  injured  employees.  In  the  Trans- 
portation Act  of  1920  Congress  created  a  Railroad  Labor, 
Board  consisting  of  three  members  representing  labor,  three 
members  from  the  management  of  railways,  and  three  mem- 
bers chosen  from  the  public,  to  hear  and  decide  disputes 


Its  Sources  and  Application  53 

with  respect  to  the  wages  of  enlployees  and  the  working  con- 
ditions of  employment. 

In  1 918  the  Supreme  Court  held  unconstitutional  an  act 
of  Congress  which  forbade  the  moving  in  interstate  com- 
merce of  manufactured  goods  into  the  making  of  which 
child  labor  had  entered.  While  liquors,  lottery  tickets, 
impure  or  adulterated  foods,  and  other  things  intrinsically 
bad  had  been  excluded  from  interstate  commerce  by  acts 
of  Congress  which  the  Supreme  Court  had  held  valid,  the 
Court  said  that  there  was  nothing  to  show  that  the  product 
of  child  labor  is  not  as  good  as  that  of  adult  labor.  The 
act  purported  to  regulate  commerce,  but  it  was  in  effect 
an  interference  with  local  affairs  and  the  police  power  of 
the  State. 

Australia  was  quick  to  put  a  commerce  clause  in  its  Con- 
stitution (1900)  and  thus  end  as  to  the  new  States  of  the 
Commonwealth  the  burdens  and  exactions  which  as  prov- 
inces they  had  imposed  upon  one  another.  Brazil  had  made 
(1890)  its  federal  government  supreme  over  commerce,  as 
Canada  had  done  twenty-three  years  before.  In  short, 
it  may  be  said  that  all  important  constitutions  have  followed 
ours  by  introducing  a  clause  to  prevent  the  States  from  in- 
terfering with  commerce. 

To  establish  an  uniform  Rule  of  Naturalization,^^ 

^^  A  complaint  against  George  III  in  the  Declaration  of 
Independence  was  that  *^he  has  endeavored  to  prevent  the 
population  of  these  States,  for  that  purpose  obstructing 
the  laws  for  the  naturalization  of  foreigners,  and  refusing 
to  pass  others  to  encourage  their  migration  hither."  On  the 
day  of  the  signing  of  the  Declaration  of  Independence  the 
Continental  Congress  passed  a  resolution  that  ''all  persons 
abiding  in  any  of  the  United  Colonies  and  deriving  protec- 
tion from  the  laws  of  the  same  owe  allegiance  to  said  laws, 
and  are  members  of  such  Colonies."  That  resolution  gov- 
erned until  the  Articles  of  Confederation  went  into  effect 


54  Constitution  of  the  United  States 

on  March  2,  1781,  the  fourth  of  the  Articles  providing  that 
"the  free  inhaibitants  of  each  of  these  States  —  paupers, 
vagabonds,  and  fugitives  from  justice  excepted  —  shall 
be  entitled  to  all  the  privileges  and  immunities  of  the  free 
citizens  in  the  several  States."  That  enabled  the  States 
to  affect  citizenship  in  one  another  and  much  confusion 
resulted.  Hence  the  provision  in  the  Constitution  for 
National  and  uniform  control. 

In  Washington's  first  message  to  Congress  (or,  rather, 
first  annual  address,  for  his  message  was  oral)  he  recom- 
mended "that  the  terms  on  which  foreigners  may  be  ad- 
mitted to  the  rights  of  citizens  should  be  speedily  ascer- 
tained by  a  uniform  rule  of  naturahzation."  That  Congress 
passed  a  law  and  there  have  been  many  supplemental  enact- 
ments and  revisions  since.  It  was  then  assumed  by  the 
Government  of  the  United  States  that  the  citizen  of  one 
country  could  cast  off  allegiance  at  pleasure  and  declare 
fealty  to  another  government ;  but  most  European  govern- 
ments did  not  permit  this,  although  some  did.  Thus,  in 
"Burnet's  History  of  His  Own  Times"  he  says  that  James  II 
of  England  asked  the  States  of  Holland  to  surtender  him 
to  face  a  charge  of  treason,  but  that  he,  "being  a  subject 
of  Holland  (for  I  was  naturalized),  claimed  their  protec- 
tion." Our  War  of  181 2  with  England  was  caused  in 
part  by  its  claim  that,  notwithstanding  naturahzation 
in  the  United  States,  it  could  take  Enghsh-born  seamen 
from  our  ships  to  serve  in  its  defence  against  Napoleon. 
The  American  doctrine,  laid  down  by  Daniel  Webster, 
Secretary  of  State  to  Presidents  Harrison,  Tyler,  and  Fill- 
more, was  that  the  flag  of  the  ship  protects  the  crew  and 
determines  their  nationahty.  Great  Britain  had  always 
claimed  the  right  to  raise  both  land  and  naval  forces  by 
compulsion.  Men  were  seized  wherever  found  and  often 
^heir  relati^^f^-  '"<ever  knew  what  had  become  of  them. 
Although  the  '  '^^-r>t    whit"      losed  the  War  of 

ioi2,  leit  this  question  unmentioned,  the  English  Govern- 


Its  Sources  and  Application  55 

ment  never  again  seized  men;  but  it  insisted  upon  the 
right  forcibly  to  visit  and  search  our  ships  in  time  of 
peace  until  President  Buchanan  sent  (1858)  our  navy  to 
the  Gulf  of  Mexico  to  stop  it.  In  the  proclamation  issued 
by  George  III  in  1807,  two  years  after  the  great  naval 
battle  of  Trafalgar,  in  which  the  English  fleet  under 
Nelson  overcame  Napoleon  I  on  the  sea,  all  men  born 
under  the  EngHsh  flag  were  called  home  from  all  lands 
and  they  were  warned  that  no  foreign  letters  of  naturali- 
zation could  in  any  manner  divest  natural-born  citizens  of 
allegiance  to  the  EngHsh  Government  or  release  them  from 
duty.  It  was  not  until  the  thirty-third  year  of  the  reign 
of  Queen  Victoria  (1870)  that  England  came  to  the  American 
viewpoint  respecting  this  subject,  when  the  British  Govern- 
ment entered  into  a  treaty  with  the  United  States  pro- 
viding that  naturalized  subjects  in  each  country  should  be 
treated  in  all  respects  as  natives.  In  pursuance  of  the  treaty 
a  Naturalization  Act  was  passed  in  that  year  by  Parliament 
under  which  ahens  who  became  naturalized  were  authorized 
to  hold  property  (except  British  ships)  as  if  they  were  nat- 
ural-born subjects,  after  a  residence  of  five  years,  or  after 
service  to  the  Crown.  The  Act  authorized  a  subject  of 
the  British  Government  to  expatriate  himself  by  becoming 
naturalized  in  a  foreign  country.  Down  to  that  time  the 
rule  of  English  law  was  that  no  one  could  renounce  the  coun- 
try or  allegiance  in  which  he  was  born. 

A  legal  change  of  citizenship  probably  arose  with  the 
Romans.  Roman  citizenship  was  at  first  confined  to  the 
city.  Gradually  it  was  extended  until  it  included  Italy. 
From  that  it  was  widened  to  favored  provinces.  Gibbon 
mentions  in  his  ''Decline  and  Fall  of  the  Roman  Empire" 
(Vol.  I,  ch.  vi)  that  the  Emperor  Caracalla  (a.d.  222-235), 
"  communicated  to  all  the  free  inhabitants  of  the  Empire  the 
name  and  privileges  of  Roman  citizens."  The  provincial 
considered  it  a  great  distinction  to  have  the  protection 
of  Roman  citizenship.     In  a  'dramatic  scene  in  the  New 


56  Constitution  of  the  United  States 

Testament  (Acts  XXII,  24-28)  St.  Paul  claims  the  pro- 
tection of  the  Roman  citizenship  in  which  he  was  born. 

Under  our  laws  an  alien  of  the  age  of  eighteen  may  de- 
clare his  intention  to  become  a  citizen  of  the  United  States. 
This  declaration  must  be  made  at  least  two  years  before 
he  becomes  a  citizen.  Not  more  than  seven  years  there- 
after he  must  file  a  petition  for  naturalization,  signed  by 
him,  and  containing  full  particulars  of  his  personal  history. 
He  must  state  that  he  is  not  a  disbeliever  in  or  opposed  to 
organized  government,  that  he  is  not  a  member  of  or  affli- 
ated  with  any  organization  so  opposed,  and  that  he  is  not 
a  polygamist.  In  this  petition  he  must  repeat  his  first  dec- 
laration that  it  is  his  intention  to  become  a  citizen,  to  reside 
permanently  in  the  United  States,  and  to  renounce  abso- 
lutely all  allegiance  or  fidelity  to  any  other  government. 

In  addition  to  naturaHzation  under  the  *' uniform  rule" 
of  the  Act  of  Congress,  aliens  have  been  made  citizens  by 
treaties,  as  was  done  in  1848  by  the  treaty  of  Guadaloupe 
Hidalgo  for  all  those  in  the  territory  acquired  from  Mexico ; 
and  when  Texas  was  admitted  to  the  Union  by  joint  reso- 
lution of  Congress  its  inhabitants  were  thereby  natural- 
ized. 

Where  a  naturalized  citizen  returns  to  his  native  country 
within  five  years,  or  goes  to  any  other  country  for  permanent 
residence,  that  is  taken  as  prima  facie  evidence  of  his  lack 
of  intention  to  become  a  citizen,  and  his  certifix:ate  will 
be  therefore  cancelled.  This  provision  was  enacted  by 
Congress,  following  messages  of  President  Grant  showing 
that  aliens  had  taken  our  certificates  of  naturalization  and 
then  returned  to  their  native  country  or  gone  to  some  other 
country  and  made  use  of  the  certificates  to  protect  them 
against  military  service  and  in  other  ways. 

While  our  States  have  no  jurisdiction  over  naturaliza- 
tion as  it  affects  citizenship  alone,  most  of  them  have  legis- 
lative enactments  touching  the  status  of  the  aHen  in  the 
ownership  of  land,  or  in  the  right  to  inherit  property  or  to 


Its  Sources  and  Application  57 

transmit  it  to  his  heirs.  In  some  States  aliens  may  hold 
and  transmit  property  as  if  they  were  native  citizens.  In 
other  States  aliens  may  hold  land  only  for  a  limited  time, 
when  they  must  dispose  of  it.  The  regulations  of  the  vari- 
ous States  are  numerous.  In  some  States  the  alien  who 
has  declared  his  intention  to  become  a  citizen  is  permitted 
to  vote  for  candidates  for  minor  offices.  Since  the  World 
War  this  privilege  has  been  revoked  in  at  least  one  State. 

In  1887  Congress  passed  "An  Act  to  restrict  the  owner- 
ship of  real  estate  in  the  Territories  to  American  citizens", 
making  it  unlawful  for  an  ahen  who  had  not  declared  his 
intention  to  become  a  citizen  to  acquire  or  hold  real  estate 
excepting  in  cases  where  ownership  was  protected  by 
treaty;  and  ten  years  later  the  act  was  amended  to  give 
ahen  holders  of  land  ten  years  within  which  to  dispose  of 
their  property. 

Under  an  act  of  Congress  passed  in  1906  providing  for 
the  cancellation  of  a  certificate  of  naturalization  on  the 
ground  of  fraud  in  its  procurement  many  certificates  were 
revoked  during  the  World  War  because  the  sympathy  shown 
by  the  naturalized  persons  for  the  nations  at  war  with  the 
United  States  proved  that  when  they  renounced  allegiance 
to  their  former  governments  and  swore  that  they  would 
defend  the  United  States  they  acted  fraudulently. 

and  uniform  Laws  on  the  subject  of  Bankruptcies 
throughout  the  United  States ;  ^^ 

^^  The  Articles  of  Confederation  did  not  deal  with  the 
bankrupt.  The  word  originally  applied  to  one  who  de- 
frauded his  creditors.  Now  it  means  one  who  is  unable, 
for  any  reason,  to  pay  them. 

From  time  to  time  Congress  has  enacted  bankruptcy 
laws.  In  1800,  in  1841,  and  in  1867,  bankruptcy  acts  were 
passed  which  were  of  short  dumtion. 

On  July  I,  189^  ;    UT  av  law  was  enacted  which 


58  Constitution  of  the  United  States 

(with  amendments)  has  been  in  effect  ever  since.  While  an 
act  of  Congress  is  in  effect  the  law  of  a  State  on  bankruptcy 
is  necessarily  suspended  because  the  Constitution  makes 
the  National  law  uniform  ''throughout  the  United  States." 

One  becomes  a  voluntary  bankrupt  by  fiUng  a  petition 
in  a  United  States  District  Court  and  turning  over  all  of 
his  possessions  (except  exempted  property,  Uke  the  home- 
stead, or  the  tools  of  a  workman)  for  division  among  his 
creditors.  If  no  fraud  appear  he  will  be  released  from  his 
debts,  except  those  to  a  municipaUty,  except  as  to  credits 
which  he  secured  on  fraudulent  pretenses,  except  aHmony, 
and  except  one  or  two  other  obligations.  A  creditor  may 
file  a  petition  against  a  debtor  and  place  him  in  involuntary 
bankruptcy  when  he  beUeves  that  a  debtor  is  making  away 
with  property  or  favoring  other  creditors,  and  for  some  other 
reasons ;  and  then  the  court  takes  immediate  possession 
of  the  debtor's  assets  and  protects  them  for  the  benefit  of 
all  creditors.  The  law  therefore  operates  to  the  advantage 
of  both  the  debtor  and  the  creditor. 

The  bankruptcy  or  insolvency  law  of  a  State  cannot,  the 
Supreme  Court  held  (1819),  discharge  a  debtor  in  that  State 
from  his  previously  incurred  HabiHty  to  pay,  as  the  Con- 
stitution forbids  (Note  71)  the  State  to  impair  the  obligation 
of  a  contract.  The  State  law  under  consideration  in  that 
case  was  designed  not  only  to  Kberate  the  debtor  from  prison, 
but  also  to  discharge  him  from  all  contractual  liability. 
Later  the  court  held  (1827)  that  such  a  State  law  does  not 
impair  the  obligation  of  future  contracts.  In  such  circum- 
stances the  creditor  contracts  with  full  knowledge  of  the 
possibility  of  the  debtor's  insolvency.  And  as  the  law  of 
a  State  can  have  no  extraterritorial  effect  (that  is,  cannot 
operate  directly  in  another  State),  the  discharge  of  a  debtor 
by  the  insolvency  law  of  his  own  State  does  not,  it  has  been 
held  (1891),  release  him  (even  as  to  future  contracts)  from 
an  obligation  to  a  creditor  who  is  a  citizen  of  another  State 
and  who  has  not  submitted  himself  to  the  jurisdiction  of 


Its  Sources  and  Application  59 

the  courts  of  the  State  in  which,  the  insolvency  law  was 
passed  and  applied. 

Much  difference  of  opinion  prevails  as  to  the  value  or 
the  justice  of  the  National  Bankrupty  Act,  some  beheving 
it  to  be  not  only  a  shield  but  also  an  inducement  to  dis- 
honest men.  The  provision  in  the  Constitution  undoubt- 
edly came  from  the  rigor  with  which  unfortunate  debtors 
were  once  treated  and  were  dealt  with  down  to  the  time  of 
its  adoption.  In  President  Jackson's  annual  message  of 
1829,  and  again  in  his  message  of  1 831,  he  recommended 
the  discharge  from  imprisonment  of  debtors  to  the  Govern- 
ment where  no  fraud  had  been  practiced  in  incurring  the 
debts.  ''The  continuance  of  the  Hability  after  the  means 
to  discharge  it  have  been  exhausted,"  said  he,  "can  only 
serve  to  dispirit  the  debtor.  .  .  .  The  personal  Hberty 
of  the  citizen  seems  too  sacred  to  be  held,  as  in  many  cases 
it  now  is,  at  the  will  of  the  creditor  to  whom  he  is  wilHng 
to  surrender  all  the  means  he  has  of  discharging  his  debt." 
While  the  Constitution  of  Pennsylvania  of  1776  was  about 
the  first  to  open  the  prison  doors  of  debtors,  it  was  not  un- 
til 1827  that  a  general  agitation  was  begun  in  this  country 
to  abolish  imprisonment  for  debt.  Such  imprisonment  is 
forbidden  in  many  States  except  in  cases  of  fraud. 

An  act  of  Congress  of  1S39  (with  revisions)  forbids  im- 
prisonment by  a  Federal  Court  where  imprisonment  for 
debt  has  been  abolished  by  the  law  of  the  State  in  which 
the  Federal  Court  is  sitting.  It  had  been  held  by  the 
Supreme  Court  of  the  United  States  (1823)  that  a  debtor 
who  had  been  discharged  under  a  law  of  New  York  (181 9) 
abolishing  imprisonment  for  debt  was  not  entitled  to  re- 
lease from  imprisonment  on  a  judgment  rendered  against 
him  in  favor  of  the  United  States. 

One    Hebrew    law   (Deuteronomy  XV)   requires  that 

*'  every  creditor  shall  release  that  which  he  hath  lent  unto 

'  his  neighbor"  in  the  general  release  which  was  commanded 

"at  the  end  of  every  seven  years."     But  historians  point 


60  Constitution  of  the  United  States 

out  that  the  Hebrew  laws  of  leniency  were  frequently  if 
not  generally  disregarded.  Thus  Jesus  spoke  (Matthew 
XVIII,  23-25)  of  the  king's  servant  who  owed  a  heavy 
debt  and  who  was  ordered  ^'to  be  sold,  and  his  wife,  and 
children,  and  all  that  he  had,  and  payment  to  be  made." 
Two  sons  of  a  widow  were  released  from  bondage  for  a 
small  debt  by  a  miracle  performed  by  Elisha. 

Gibbon  says  (''Decline  and  Fall  of  the  Roman  Empire "^^ 
Vol.  IV,  p.  505)  that  under  the  Roman  law  of  the  500's 
a  debtor  might  either  be  sold  to  slavery  or  put  to  death. 
In  *' Little  Dorrit"  the  harsh  treatment  of  the  debtor  in 
England  down  to  late  years  is  portrayed  by  Dickens. 
*'When  the  fortress  [Bastile]  was  taken,"  says  Dicey, 
*'  there  were  not  ten  prisoners  within  its  walls ;  at  that  very 
moment  hundreds  of  debtors  languished  in  EngHsh  gaols." 

It  was  the  unhappy  lot  of  the  debtor  in  England  that  im- 
pelled James  Oglethorpe,  who  as  a  member  of  Parliament 
had  served  on  a  coinmittee  to  investigate  conditions  in 
prison,  to  found  (1733)  in  the  reign  of  George  II  the 
Colony  of  Georgia  for  the  relief  of  such  unfortunates. 

At  the  time  our  Constitutional  Convention  was  sitting 
the  Congress  acting  under  the  Articles  of  Confederation 
erected  the  Northwest  Territory  (now  Ohio,  Indiana,  Illi- 
nois, Wisconsin,  and  Michigan)  and  in  the  ordinance  or  act 
provided  for  imprisonment  for  debt.  The  first  Congres^ 
under  the  new  Constitution  confirmed  the  ordinance. 

To  coin  Money,  regixlate  the  Value  thereof,  and  of 
foreign  Coin,''^ 

^^No  National  coinage  was  issued  until  1793.  Up  to 
that  time  EngHsh,  French,  and  Spanish  coins  of  various 
and  uncertain  values  were  the  money  of  our  forefathers. 
The  EngUsh  shiUing  had  decreased  in  value,  the  worth 
varying  in  different  locaHties ;  and  owing  to  this  the  Spanish 
silver  dollar  superseded  it.    Thus  the  do  liar  br^^anie  our  unit. 

While  the  Articles  of  Confederal; *jn  gave  (  pngiess  power 


Its  Sources  and  Application  61 

to  regulate  ^'  the  alloy  and  value  of  coin  struck  by  their  own 
authority,  or  by  that  of  the  respective  States",  a  variety 
of  confusing  coins  was  not  prevented.  *'The  Constitu- 
tion," wrote  Madison  in  "  The  Federalist,"  "  has  supplied 
a  material  omission  in  the  Articles  of  Confederation."  In 
addition  to  this  clause  giving  Congress  authority  over  coin- 
age and  the  values  of  coins,  the  Constitution  provides  (Note 
70)  that  *' no  State  shall  .  .  .  coin  money."  It  was  clearly 
the  firm  determination  to  do  away  forever  with  the  various 
and  variable  moneys  which  had  been  an  impediment  to  early 
commerce. 

Because  this  clause  of  the  Constitution  gives  Congress 
jurisdiction  over  coinage  and  the  value  of  coins,  and  because 
Section  10  of  ^Ja^ame  Article  forbids  the  State  to  *'make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts",  it  was  argued  in  the  Legal  Tender  Cases,  arising 
out  of  legislation  during  the  Civil  War,  that  it  was  the 
purpose  of  the  people  in  their  Constitution  to  put  an  end 
to  the  misuses  and  abuses  of  paper  money  as  they  had 
known  them.  But  it  was  answered  that  the  prohibition 
of  the  making  of  ^'anything  but  gold  and  silver  coin  a 
tender  in  the  payments  of  debts"  stands  in  the  Consti- 
tution, not  against  the  Nation,  but  against  the  State. 
The  Supreme  Court  held  that  the  necessities  of  the 
Nation,  which  are  to  be  determined  by  Congress,  must 
control  (Note  44). 

and  fix  the  Standard  of  Weights  and  Measures ;  ^^ 

^^  The  Articles  of  Confederation  (Art.  IX,  sec.  4)  gave 
to  its  Congress  ^'  the  sole  and  exclusive  right  and  power  of 
.  .  .  fixing  the  standard  of  weights  and  measures  through- 
out the  United  States",  so  this  provision  in  the  new  Con- 
stitution is  substantially  like  that  in  the  Articles.  Uni- 
fo'mity  here  is  almost  if  not' quite  as  important  as  it  is 
wivh  respect  to  money.      Because  of  systematic  frauds 


6^  Constitution  of  the  United  Statea 

practiced,  Chapter  35  of  Magna  Charta  (12 15)  defined 
liquid  measures,  measures  of  cloth,  and  weights. 

In  his  first  annual  address  to  Congress,  January  8,  1790, 
Washington  said  that  ^'uniformity  ...  is  an  object  of 
great  importance  and  will,  I  am  persuaded,  be  duly  attended 
to." 

Congress  never  has  fixed  a  complete  standard  of  weights, 
and  measures.  It  has  adopted  the  wine  gallon  of  231  cubic 
inches  as  the  standard  of  liquid  measure.  The  English  or 
Winchester  bushel  has  always  been  in  use.  The  standard 
size  or  capacity  of  the  barrel  for  apples  and  other  dry  com- 
modities has  been  prescribed  by  Congress,  as  well  as  the  size 
of  the  basket  for  fruits  and  vegetables.  Electrical  units 
have  been  defined.  The  gold  dollar  of  25.8  grains,  nine- 
tenths  fine,  has  been  made  the  standard  of  money.  In  i366 
Congress  permitted,  without  requiring,  the  use  of  the  met-i 
ric  system  in  the  United  States  and  declared  that  no  con-^ 
tract  or  other  writing  should  be  held  invalid  when  expressed 
in  terms  of  that  system.  Later  (1881)  it  authorized  the 
Secretary  of  the  Treasury  to  deliver  to  the  governor  of  each 
State,  for  the  use  of  agricultural  colleges,  a  complete  set  of 
all  weights  and  measures  adopted  as  standard.  The  Post- 
master General  has  authority  to  supply  to  the  post  offices 
postal  balances  denominated  in  grams  of  the  metric  system. 
In  1 901  Congress  established  the  Bureau  of  Standards.  It 
has  custody  of  the  standards,  and  its  duties  are  to  compare 
standards  in  use,  and  to  construct  and  test  standards,  as 
well  as  to  make  a  general  study  of  the  subject. 

To  provide  for  the  Punishment  of  counterfeiting 
Securities  and  current  Coin  of  the  United  States ;  ^^ 

^°  Had  this  power  not  been  expressly  conferred  upon  Con- 
gress it  would  be  implied  from  the  preceding  power  *'  to  coin 
money  and  regulate  the  value  thereof '\  if  not  from  the  in- 
herent power  r)f  any  governmeni  to  p.  ur'ity 


Its  Sources  and  Application  63 

and  itself.  The  power  was  not  conferred  by  the  Articles 
of  Confederation.  It  has  been  held  that  'Hhe  securities" 
which  may  not  be  counterfeited  include  ^treasury  notes  of 
the  United  States,  its  certificates  of  indebtedness  (Hke  silver 
certificates),  its  bonds,  and  the  bills  or  paper  money  issued 
by  National  banks. 

In  1920  a  Federal  court  held  that  war  savings  stamps  come 
within  this  language  and  that  the  alteration  of  them  would 
be  punishable  under  the  provisions  of  the  penal  code  enacted 
by  Congress  in  pursuance  of  this  clause. 


To  establish  Post  Offices  and  post  Roads ; 


51 


^^  In  its  relation  to  the  intellectual,  social,  and  material 
advancement  of  the  people  this  provision  goes  alongside  of 
the  commerce  clause  for  importance.  The  Post  Office  De- 
partment deals  more  directly  with  the  individual  than  any 
other  activity  of  the  government. 

In  the  Articles  of  Confederation  provision  was  made  (Art. 
IX,  sec.  4)  for  ^'establishing  and  regulating  post  offices  from 
one  State  to  another  throughout  all  the  United  States,  and 
exacting  such  postage  on  the  papers  passing  through  the 
same  as  may  be  requisite  to  defray  the  expenses  of  the  said 
ofiice." 

The  scope  of  the  Constitution  is  wider,  including  post 
roads  as  well  as  post  offices. 

Postal  service  was  given  in  the  Colonies  as  far  back  as 
1639.  An  act  of  Parliament  of  17 10  authorized  a  deputy 
postmaster  general  for  America  at  New  York.  Benjamin 
FrankHn  took  the  office  in  1753  and  made  a  success  of  it. 
When  the  government  under  the  Constitution  began  in  1789 
there  were  about  seventy-five  post  offices  in  the  thirteen 
States.  In  1846  a  postal  treaty  was  negotiated  with  Eng- 
land. Postage  stamps  were  introduced  in  1846,  stamped 
envelopes  in  1852,  the  registered  letter  in  1855,  free  delivery 
and  the  travefing  post  office  in  1863,  the  money  order  in 


64  Constitution  of  the  United  States 

1864,  postal  cards  in  1872,  rural  delivery  in  1896,  postal 
savings  depositories  in  1910,  and  the  parcel  post  in  191 2  — 
in  all  these  matters  Congress  exercising  power  under  this 
clause. 

The  government  is  not  required  to  furnish  postal  facilities 
for  every  purpose,  the  Supreme  Court  has  held,  and  there- 
fore an  act  (1868)  forbidding  the  maihng  of  matter  relating 
to  lotteries  was  sustained  (1877)  under  this  clause.  So  of 
the  Act  of  1873  excluding  obscene  and  Hke  matter.  The 
Supreme  Court  held  further  (1892)  that  the  Amendment! 
(1890)  to  the  law  excluding  from  the  mails  newspapers  and 
periodicals  containing  advertisements  of  lotteries  did  not 
abridge  the  freedom  of  the  press  (Note  142).  The  circu- 
lation of  newspapers  as  such  was  not  prohibited.  The  news- 
papers could  enter  the  mails  by  omitting  the  advertisements. 
The  Court  said  that  Congress  could  not  be  "  compelled  ar- 
bitrarily to  assist  in  the  dissemination  of  matters  condemned 
by  its  judgment."  Of  course,  the  Post  Office  Department 
cannot  open  mail  to  j5nd  whether  it  is  objectionable  except 
in  conformity  with  the  clause  (146)  regarding  search. 

On  March  20,  1908,  President  Roosevelt  wrote  the  At- 
torney-General in  denunciation  of  anarchistic  pubHcations, 
declaring  them  to  be  the  enemies  of  mankind  and  asking 
for  an  act  of  Congress  excluding  them  from  the  mails : 

"The  Immigration  Law  now  prohibits  the  entry  into 
the  United  States  of  any  person  who  entertains  or  advo- 
cates the  views  expressed  in  this  newspaper.  It  is,  of  course, 
inexcusable  to  permit  those  already  here  to  promulgate 
such  views.  .  .  .  No  law  should  require  the  Postmaster 
General  to  become  an  accessory  to  murder  by  circulating 
literature  of  this  kind." 

To  promote  the  Progress  of  Science  and  useful 
Arts,  by  securing  for  limited  Times  ^o  Authors  and 
Inventors  the  exclusive  Right  to  their  respective  Writ- 
ings and  Discoveries;  ^^ 


Its  Sources  and  Application  65 

^^  These  subjects  were  not  mentioned  in  the  Articles  of 
Confederation.  Nor  were  they  in  the  first  draft  of  this 
Constitution.  Copyrights  had  been  granted  by  some  of 
the  States,  and  this  probably  suggested  to  Mr.  Madison 
and  Mr.  Pinckney  the  motions  which  resulted  in  this  clause. 
In  1782  Noah  Webster  began  an  effort  with  the  States  to 
secure  copyrights  of  two  elementary  works  on  EngHsh. 
The  legislature  of  Connecticut  granted  his  request  in  1784 
by  passing  probably  the  first  copyright  law  in  the  United 
States.  New  York  and  Massachusetts  followed.  In  1783 
Congress  had  recommended  such  action  by  the  States. 
Thus  the  ground  had  been  well  prepared  before  the  Con- 
stitutional Convention  assembled  (1787)  and  the  proposal 
was  quickly  accepted.  A  copyright  law,  entitled  ^'An  Act 
for  the  Improvement  of  Learning",  was  passed  (1790)  by 
the  first  Congress  under  the  Constitution  and  many  revisions 
have  since  been  made.  The  present  copyright  law  gives 
to  the  originator  the  exclusive  right  to^  make,  publish,  or 
sell  books,  maps,  charts,  pictures,  prints,  statues,  models, 
and  some  other  things  for  a  term  of  twenty-eight  years, 
with  the  privilege  of  renewal  to  him  or  to  certain  of  his  de- 
pendents for  another  term  of  twenty-eight  years.  The 
copyright  extends  to  the  pubHcation  and  sale  of  popular 
songs  and  the  use  of  them  upon  the  stage  and  in  the  phono- 
graph ;  and  it  covers  also  moving-picture  films.  Thus  the 
short  statement  of  a  principle  in  the  Constitution  is  given 
in  the  course  of  time  the  widest  practical  appHcation  —  to 
things  which  the  mind  in  1789  could  not  have  conceived. 
Ohe  infringing  the  right  is  subject  to  penalty  and  is  also  Uable 
for  damages  done  to  the  holder  of  the  copyright. 

By  the  common  law  of  England  (which  was  adopted  in 
America)  an  author  was  protected  from  the  publication  of 
his  manuscript  by  another.  But  after  he  himself  had  pub- 
lished he  lost  his  property  and  any  one  else  might  pubHsh. 
However,  by  copyright  he  is  protected  from  publication  by 
others  for  the  fuU  statutory  term. 


66  Consfitutim  of  the  United  States 

An  act  of  ParKament  in  1710  (as  later  amended)  gave  to 
the  English  author  the  sole  right  to  print  and  vend  his 
writings,  thus  adding  to  the  common-law  protection. 

The  benefit  of  our  copyright  laws  was  at  first  given  to 
citizens  only,  but  now  it  extends  to  citizens  of  countries 
which  make  reciprocal  arrangements  for  the  protection  in 
those  countries  of  American  authors. 

The  law  of  copyrights  in  the  United  States  was  largely 
formulated  by  decisions  of  Judge  Story  (later  a  Justice  of  the 
Supreme  Court  of  the  United  States),  sitting  in  the  United 
States  Circuit  Court  at  Boston,  between  1830  and  1845. 

A  patent  law,  "An  Act  to  Promote  the  Progress  of  Useful 
Arts  ",  also  was  passed  by  the  first  Congress.  The  patent 
law  as  we  know  it  really  dates  from  1836,  when  the  Acts  of 
Congress  were  fully  revised.  From  1835  to  1845  Judge 
Story  laid  in  numerous  decisions  the  foundations  of  patent 
law  as  Lord  Mansfield  created  the  commercial  law  of  Eng- 
land. Not  until  1845  did  patent  cases  appear  commonly  in 
the  Supreme  Court  of  the  United  States.  An  early  and 
famous  one,  decided  by  Chief  Justice  Taney  (1842),  had  to 
do  with  the  landside  of  a  common  plow.  In  1853  Samuel 
F.  B.  Morse  was  held  by  the  Supreme  Court,  in  a  case  arising 
in  Kentucky,  to  have  been  the  first  inventor  of  the  mag- 
netic telegraph  capable  of  recording  signs  at  a  distance.  He 
appHed  for  a  patent  on  September  28,  1837.  Davy  secured 
a  patent  in  England  in  1838  and  Wheats  tone  secured  one 
in  1840. 

The  tide  of  emigration  into  western  territory  brought  up 
patent  cases  respecting  reaping  machines,  grain  elevators, 
plows,  and  other  inventions  springing  from  agricultural  Hfe. 
In  1853  the  great  case  of  Seymour  v.  McCormick,  involving 
an  infringement  of  the  rights  of  Cyrus  H.  McCormick,  the 
inventor  of  the  reaping  machine,  patented  in  1834,  was 
passed  upon.  In  the  trial  court  at  Cincinnati,  Abraham 
Lincoln  was  associated  with  Edwin  M.  Stanton,  later  to  be 
selected  by  Lincoln  as  Secretary  of  W-^r. 


Its  Sources  and  Application  67 

Between  1850  and  i860  litigation  arose  concerning  the 
invention  of  the  breech-loading  firearm,  EHas  Howe's  sewing 
machine,  and  many  other  useful  devices. 

To  this  provision  of  the  Constitution  is  due,  undoubtedly, 
the  supremacy  of  the  United  States  in  all  fields  of  elec- 
trical aifd  mechanical  invention.  In  no  other  country  has 
the  use*  of  machinery  gone  so  far  or  done  so  much  for  human 
comfort  and  advancement.  In  every  quarter  of  the 
earth  some  American  machine  has  lessened  toil  or  given 
pleasure.  The  monopoly  offered  to  the  inventing  genius 
stimulated  him  to  seek  the  great  rewards  given  for  a 
useful  device. 

While  the  purpose  of  the  constitutional  provision  and  the 
Acts  of  Congfess  passed  from  time  to  time  to  give  it  effect 
is  that  the  genius  of  the  inventor  shall  be  recompensed  bv 
a  monopoly  of  the  manufacture  and  sale  of  his  invention, 
the  Supreme  Court  has  held  (1918)  that  ''the  exclusive  right 
to  make,  use  and  vend  the  invention  or  discovery  ceases 
when  the  right  to  vend  has  been  once  exercised."  Having 
once  sold  the  article,  he  can  no  longer  control  the  price. 
Therefore,  a  notice  placed  by  the  patentee  upon  his 
invention  that  it  was  ''licensed  by  us  for  sale  and  use  at  a 
price  of  not  less  than  $1 ",  and  that  any  violation  of  the  con- 
dition would  be  an  infringement  of  his  patent  right,  was 
held  beyond  the  protection  and  purpose  of  the  patent  laws ; 
and  accordingly  a  merchant  who  purchased  the  article  in 
trade  could  resell  it  at  less  than  a  dollar. 

In  the  Trade  Mark  Cases  (1879)  it  was  held  that  the  grant 
of  power  to  Congress  by  this  clause  of  the  Constitution  did 
not  authorize  it  to  give  exclusive  rights  in  the  use  of  regis- 
tered trade-marks.  A  trade-mark  is  not  an  invention,  nor 
is  it  the  work  of  an  author.  However,  the  courts  exercise 
their  equity  powers  to  prevent  by  injunction  the  unfair  use 
of  a  mark  or  name  (or  something  deceptionally  resembhng 
it)  under  which  another  has  built  up  a  trade  or  patronage ; 
and  at  the  same  time  the  pubUc  is  protected  from  the  im- 


68  (^ onstifMtion  of  the  United  Statea 

position  upon  it  of  an  article  different  from  the  one  which 
it  thinks  it  is  buying.  During  the  fierce  competition  of 
recent  years  and  the  Htigation  growing  out  of  it  there  has 
been  built  up  in  the  form  of  decisions  of  the  courts  a  vast 
body  of  what  is  called  the  law  of  unfair  trade. 

To  constitute  Tribunals  inferior  to  the  supreme 
Court  ;^^ 

^^  This  provision  is  repeated  in  Article  III  (Note  97), 
deahng  with  the  Judicial  Department  of  the  Government. 
Section  i  of  that  Article  vests  the  judicial  power  in  a 
Supreme  Court,  *'and  in  such  inferior  courts  as  Congress 
may  from  time  to  time  ordain  and  establish." 

''Without  such  inferior  courts  in  every  State,"  said 
President  Monroe,  "it  would  be  difficult  and  might  even 
be  impossible  to  carry  into  effect  the  laws  of  the  general 
government." 

There  are  in  the  United  States  (including  Hawaii,  Porto 
Rico,  and  Alaska)  83  district  or  trial  courts.     In  many>\ 
places  a  district  is  divided.     There  are  144  divisions,  so 
it  may  be  said  that  in  reahty  the  number  of  courts  is  above 
one   hundred.     Appeals   lie   from   those   courts  in   some\ 
cases  directly  to  the  Supreme  Court  of  the  United  States,  1 
but  in  a  large  number  of  instances  appeal  is  taken  to  the  * 
Circuit    Court    of    Appeals,  a  tribunal    of   three   judges 
created  in  1891  for   the  relief  of  the  Supreme  Court,  the 
decision   of   which  is  final  in  many  cases.     The  Unite(f 
States  and  its  possessions  are  divided  into  nine  circuits,^ 
and  one  of  the  justices  of  the  Supreme  Court  is,  under  an' 
act   of   Congress,   allotted   by  the  Chief  Justice  to  eaclF^ 
circuit,   where  he  sits   as   presiding  judge  whenever  he 
attends  (which  is  not  often)  a  session  of  the  court.     There 
is  a  Court  of  Claims  at  Washington,  estabhshed  in  1855, 
in  which  the  Government  consents  to  be  sued.     In  1909 
Congress  established  a  Court  of  Customs  Appeals  with  juris- 


Its  Sources  and  Application  69 

diction  over  import  duties.     In  China  and  some  other  coun- 
tries we  have  consular  courts. 

To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offenses  against  the 
Law  of  Nations ;  ^^ 

^^  It  is  fitting  that  matters  touching  the  law  of  nations 
should  be  under  the  power  of  the  Nation  rather  than  under 
those  of  the  States.  Otherwise,  a  State  dealing  with  a 
foreign  nation  might  embroil  all  the  States.  The  Articles 
of  Confederation  (Art.  IX)  gave  to  ^'the  United  States  in 
Congress  assembled"  the  "sole  and  exclusive  right  and 
power  of  .  .  .  appointing  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas."  But  "to  define 
and  punish"  was  not  contained  in  the  Articles.  The  high 
seas  are  the  public  seas  over  which  all  vessels  have  the  right 
to  travel,  Hke  a  highroad  or  highway.  They  include  the 
uninclosed  waters  of  the  ocean  and  those  on  the  coast  out- 
side of  the  low-water  mark.  Piracies  (robberies)  and 
felonies  (offences  punished  by  imprisonment  or  death)  as 
they  were  known  in  1787  have  disappeared  from  the  sea. 
Piracy  was  a  profitable  business  then,  as  it  had  been  from 
time  immemorial.  Captain  Kidd  and  many  others  became 
noted  at  it.  By  the  Treaty  of  Ryswick  (1697)  England, 
France,  Spain,  and  Holland  bound  themselves  to  make  com- 
mon cause  against  piracy.  Algiers  covered  the  sea  with 
pirates  and  in  Washington's  administration  the  safety  of 
American  commerce  was  purchased  by  the  payment  of  trib- 
ute to  pirates.  At  the  close  of  the  War  of  181 2  the  United 
States  sent  Commodore  Decatur  with  a  fleet  of  nine  ships 
to  punish  the  Barbary  pirates.  He  captured  their  chief 
vessels,  entered  the  Bay  of  Algiers,  and  dictated  a  treaty  to 
the  humbled  Dey.  He  then  sailed  to  Tunis  and  Tripoli, 
where  he  took  pledges  of  good  conduct.  Since  then  this 
clause  of  our  Constitution , has  been  practically  obsolete, 
except  as  to  offences  against  international  law. 


^onsiitutiori  of  the  United  States 


To  declare  War,  grant  Letters  of  Marque  and  Re- 
prisal, and  make  Rules  concerning  Captures  on  Land 
and  Water ;  ^^ 

^^  The  Articles  of  Confederation  conferred  upon  Congress 
the  "sole  and  exclusive  right  and  power  of  determining  on 
peace  and  war."    But  the  United  States  could  not  engage 
in  war  "unless  nine  States  assent  to  the  same."     More  de^^ 
finite  and  full  language  is  used  in  the  Constitution.     All 
those  powers  are  attributes  of  nationality  and  would  exist/ 
without  mention  in  the  Constitution.     But  it  was  desirable 
to  make  definite  the  department  of  the  government  in  which 
they  should  reside.     In  the  Constitutional  Convention  some 
thought  the  President  should   have  the  powers;   others 
favored  bestowing  them  upon  the  Senate  as  representing  . 
the  States ;  but  the  prevailing  opinion  was  that  the  grave  I 
acts  of  declaring  and  conducting  war  should  be  performed 
by  the  whole  Congress.     In  1812  Congress  passed  an  act  , 
declaring  war  on  Great  Britain  because  of  hostile  acts/ 
done  by  that  country.     In  1846  a  resolution  of  Congress  *% 
declared  that  a  state  of  war  already  existed  with  Mexico 
owing  to  hostile  acts  of  that  nation.    In  1898  Congress 
declared  war  upon  Spain.     In  191 7  a  resolution  of  war  was 
passed  by  Congress  as  a  result  of  the  sinking  by  Germany 
of  the  Lusitania  and  other  merchant  ships  with  the  loss  of 
American  hves,  and  of  other  violations  of  international  law 
with  respect  to  the  United  States. 

It  should  be  interesting  to  read  here  the  declaration  which 
began  the  World  War.  An  Austrian  prince  had  been  killed 
in  Bosnia,  through  Servian  influences,  it  was  beheved.  The 
answer  of  Servia  to  a  demand  for  apologies  and  promises 
was  (although  very  humble)  considered  unsatisfactory. 
Therefore : 

"The  Royal  Government  of  Servia  not  having  replied  in 
a  satisfactory  manner  to  the  note  remitted  to  it  by  the 
Austro-Hungarian  minister  in  Belgrade,  July  23,  19 14,  this 


Its  Sources  and  Application  71 

Imperial  and  Royal  Government  finds  itself  compelled  to 
proceed  itself  to  safeguard  its  rights  and  interests  and  to 
have  recourse  for  this  purpose  to  force  of  arms. 

''Austria-Hungary  considers  itself,  therefore,  from  this 
moment  in  a  state  of  war  with  Servia. 

''  Count  Berchthold, 
''Minister  Foreign  Affairs  of  Austria-Hungary." 

And  the  proud  Government  which  wrote  the  note 
perished,  and  its  people  underwent  hardships  and  hunger 
probably  unexampled  in  the  history  of  misfortune.  Other 
governments  and  other  peoples  were  involved  in  the  ruin. 

The  important  lesson  to  be  learned  here  is  that  in  the 
United  States  one  man  (or  one  coterie)  cannot  declare  war. 
That  can  be  done  only  by  the  two  Houses  of  Congress  (531 
members),  elected  by  the  direct  vote  of  the  people.  Action 
is  not  likely  to  be  hurried  or  unjust. 

"The  genius  and  character  of  our  institutions  are  peace- 
ful," said  the  Supreme  Court  of  the  United  States  (1849), 
*'  and  the  power  to  declare  war  was  not  conferred  upon  Con- 
gress for  the  purposes  of  aggression  or  aggrandizement,  but 
to  enable  the  general  government  to  vindicate  by  arms,  if 
it  should  become  necessary,  its  own  rights  and  the  rights 
of  its  citizens." 

In  the  foregoing  case  the  question  was  whether  the  city 
of  Tampico,  Mexico,  while  in  the  military  possession  of  the 
United  States  in  1847,  ceased  to  be  a  foreign  country  so 
that  customs  duties  could  not  be  laid  on  imports  from  it. 
The  answer  was  No.  While  the  United  States  may  acquire 
territory,  it  can  do  so  only  through  the  treaty-making  or 
the  legislative  power  —  the  victories  of  the  President  as 
Commander  in  Chief  "do  not  enlarge  the  boundaries  of  this 
Union,  nor  extend  the  operation  of  our  institutions  and 
laws  beyond  the  Hmits  before  assigned  to  them  by  the 
legislative  power." 

Half  a  century  later  a  somewhat  similar  question  arose 
after  the  war  with  Spain.     Porto  Rico  and  the  Philippines 


72  Constitution  of  the  United  States 

were  ceded  by  that  Government  to  the  United  States.  Did 
the  acquisition  change  the  status  of  the  islands  so  that  they 
ceased  to  be  ''foreign  countries"  within  the  meaning  of  the 
tariff  laws  under  which  duties  had  been  paid  by  their  citizens 
on  their  exports  to  this  country?  Next,  how  were  they 
affected  by  the  clause  of  the  Constitution  (Note  63)  requir-A 
ing  that  *'  all  duties,  imposts,  and  excises  shall  be  uniform  j 
throughout  the  United  States?"  In  a  series  of  decisions 
in  what  were  called  the  Insular  Cases,  extending  from 
1 90 1  to  1905,  the  doctrine  was  estabUshed  that  it  is  for 
Congress  first  to  determine  when  acquired  territory  is  in 
a  condition  to  become  in  legal  completeness  a  part  of  the 
United  States.  Territory  comes  into  the  United  States 
through  the  door  of  congressional  legislation  and  prepara- 
tion. Until  brought  in  by  Congress  new  territory,  while  it 
has  ceased  to  be  a  foreign  country,  does  not  become  a  part 
of  the  United  States  to  the  extent  that  its  people  have  all 
the  constitutional  guaranties  of  civil  and  poHtical  rights. 

In  contrast  with  the  declaration  of  war  by  an  autocracy 
there  is  quoted  the  resolution  of  our  Republic,  passed  by 
Congress  on  April  4,  191 7,  after  listening  to  an  address  by 
the  President  in  recital  of  the  infractions  of  international 
law: 

''Whereas,  The  Imperial  German  Government  has  com- 
mitted repeated  acts  of  war  against  the  government  and  the 
people  of  the  United  States  of  America ;  therefore,  be  it 

"Resolved,  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
the  state  of  war  between  the  United  States  and  the  Imperial 
German  Government  which  has  thus  been  thrust  upon  the  • 
United  States  is  hereby  formally  declared;  and  that  the 
President  be,  and  he  is  hereby,  authorized  and  directed  to 
employ  the  entire  naval  and  mihtary  forces  of  the  United 
States  and  the  resources  of  the  government  to  carry  on  war 
against  the  Imperial  German  Government ;  and,  to  bring 
the  conflict  to  a  successful  termination,  all  of  the  resources 


Its  Sources  and  Application  73 

of  the  country  are  hereby  pledged  by  the  Congress  of  the 
United  States." 

The  vote  in  the  Senate  was,  yeas,  82  ;  nays,  6 ;  not  voting 
(sick  or  absent),  8.  In  the  House  the  vote  was,  yeas,  373  ; 
nays,  50 ;  not  voting,  9.  V.  /^" 

Letters  of  marque  and  reprisal,  authorized  by  the  Articles 
of  Confederation  and  by  this  clause,  are  authority  issued 
by  a  government  to  its  citizens  to  fit  out  ships  (privateers)_ 
to  capture  the  ships  or  property  of  another  nation  with  which 
it  is  at  war.  Once  every  armed  vessel  was  required  to  carry 
a  letter  of  marque  as  evidence  that  it  was  not  a  pirate. 

In  a  later  section  (Note  70)  the  State  is  forbidden  to 
issue  letters  of  marque  and  reprisal.  By  the  Declaration 
of  Paris  (1856),  to  which  the  United  States  declined  to 
assent  because  private  property  was  not  to  be  exempt 
from  capture  at  sea,  privateering  was  abolished  by  a  con- 
vention of  European  powers. 

To  raise  and  support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a  longer  Term  than 
two  Years ;  ^^ 

^^  To  raise  and  support  armies  is  a  power  implied  from 
the  grant  of  the  preceding  one  *'to  declare  war.''  But  to 
leave  no  question  as  to  what  department  of  the  government 
would  do  it,  the  power  was  expressly  conferred  upon  Con- 
gress ;  for  otherwise  the  President  as  Commander  in  Chief 
(Note  85)  might  assume  to  raise  armies  after  Congress  had 
made  the  declaration  of  war.  The  President  cannot  raise 
an  army,  nor  can  Congress  maintain  one  by  an  appropriation 
^or  a  longer  term  than  two  years.  England,  which  suffered 
much  from  Kings  and  Parliaments  that  raised  armies,  re- 
sorted from  1689  (the  year  of  the  Bill  of  Rights)  to  1879  to 
the  device  of  the  Mutiny  Act.  That  Act,  passed  each  year, 
began  by  reciting  that  the  Bill  of  Rights  made  illegal 
a  standing  army  except  by  consent  of  Parliament,  and  then 
it  expressed  the  opinion  that  certain  forces  would  be  neces- 


74  Constitution  of  the  United  States 

sary  for  the  coining  year  and  accordingly  made  an  appro- 
priation of  money.  In  addition  it  made  regulations  separate 
from  the  civil  law  for  the  discipUne  of  the  forces  and  for  the 
prevention  and  punishment  of  mutiny.  In  1879  ^  revision 
of  the  Mutiny  Act  was  called  the  Army  DiscipHne  and  Reg- 
ulation Act,  which  also  was  passed  each  year.  It  is  now 
called  the  Army  (Annual)  Act. 

By  raising  ship  money  through  a  system  of  taxation  of 
his  own,  instead  of  asking  ParHament  for  an  appropriation, 
Charles  I  was  able  to  construct  and  man  a  powerful  navy ; 
but  in  the  Civil  War  which  followed  his  course  he  was  de- 
feated by  the  Parliamentary  party  and  then  beheaded. 

While  the  new  Constitution  was  undergoing  the  ordeal 
of  ratification  by  State  conventions,  Alexander  Hamilton 
said  in  "  The  FederaHst  " : 

"The  legislature  of  the  United  States  will  be  obliged  by 
this  provision,  once  at  least  in  every  two  years,  to  dehberate 
upon  the  propriety  of  keeping  a  military  force  on  foot ;  to 
come  to  a  new  resolution  on  the  point ;  and  to  declare  their 
sense  of  the  matter  by  a  formal  vote  in  the  face  of  their  con- 
stituents. They  are  not  at  liberty  to  vest  in  the  Executive 
Department  permanent  funds  for  the  support  of  an  army, 
if  they  were  even  incautious  enough  to  be  willing  to  repose 
in  it  so  improper  a  confidence." 

As  the  President  cannot  raise  an  army,  and  as  Congress 
cdn  maintain  one  for  only  two  years  (the  length  of  a  term 
of  Congress),  the  possibility  of  collusion  between  them  is 
very  remote.     Anything  indicating  collusion  would  be  dealt  1 
with  by  the  voters,  who  can  retire  every  member  of  the  I 
House  of  Representatives  and  one  third  of  the  Senate*, 
every  two  years  and  put  in  those  who  would  respect  the   ' 
popular  will.    In  the  Constitutional  Convention  there  was 
much  opposition  to  a  standing  army ;  but  it  was  felt  that 
that  danger  would  be  averted  by  placing  the  support  of  it 
in  Congress,  and  then  restricting  the  power  of  Congress  to 
make  appropriations. 


I 

Its  Sources  and  Application  75 

The  Articles  of  Confederation  were  weak  as  to  raising 
and  supporting  armies.  First,  while  "the  United  States 
in  Congress  assembled"  had  the  "sole  and  exclusive  right 
and  power  of  determining  on  peace  and  war"  (Art.  IX),  it 
was  declared  in  the  same  article  (Sec.  6)  that  the  government 
"shall  never  engage  in  war  .  .  .  unless  nine  States  assent 
to^he  same."  Second,  "all  charges  of  war  .  .  .  shall  be 
defrayed  out  of  a  common  treasury"  (Art.  VIII)  to  "be 
supplied  by  the  several  States."  There  was  an  almost  total  — 
lack  of  the  concerted  powers  which  are  necessary  to  that 
swift  and  decisive  action  often  required  in  National  emer- 
gencies. 

The  Constitution  corrected  those  faults.  Thus  in  191 7 
Congress  by  resolution  announced  that  because  of  the  acts 
of  Germany  a  state  of  war  existed  with  that  nation ;  and 
then,  without  any  reference  to  the  States,  it  passed  in  rapid 
succession  acts  laying  on  all  the  people  (not  of  the  States, 
but  of  the  Nation)  many  kinds  of  emergency  taxes,  laws 
providing  for  the  issuing  of  liberty  bonds,  for  the  conscrip- 
tion of  men  for  the  army  and  the  navy,  for  the  building  of 
ships,  for  the  making  of  munitions,  and  for  all  the  other 
purposes  of  war.  During  the  World  War  many  of  the 
States  enacted  laws  in  aid  of  the  National  endeavor. 

The  army  of  Europe  which  our  fathers  feared  was  devel- 
oped through  centuries  of  plunder  by  adventurous  or  preda- 
tory rulers,  one  of  the  inducements  to  hireling  service  in 
the  rank  and  file  being  a  share  of  the  pillage.  But  the 
armies  which  have  been  raised  in  the  United  States  have 
been  of  entirely  different  origin  and  training.  They  have 
come  from  homes,  from  generations  of  home-keeping  and 
right-respecting  people,  and  they  have  been  anxious  to 
return  home.  Within  a  few  months  after  the  Grand  Re- 
view of  the  Union  armies  in  Washington  after  the  Civil 
War,  over  a  milHon  veterans,  fully  equipped,  had  dissolved, 
as  it  were,  and  disappeared  in  the  civilian  life  whence  they 
came.    And  after  the  World  War  4,800,000  men^  of  whom 


] 


76  Constitution  of  the  United  States 

2,084,000  had  gone   to  France   and   1,300,000  had   seen 

active  service  at  the  front,  hurried  gladly  to  their  homes 

and  left  off  even  the  military  titles  which  they  had  won. 

However,  it  is  well  to  have  written  in  the  Constitution  the 

limitations  regarding  an  army. 

'\ 
To  provide  and  maintain  a  Navy ; 

To  make  Rules  for  the  Government  and  Regula- 
tion of  the  land  and  naval  Forces ; 

To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and 
repel  Invasions ;  " 

^^  A  militia  was  provided  for  in  the  Articles  of  Confed- 
eration (Art.  VI,  sec.  4),  each  State  being  required  to  keep 
up  a  body  of  disciplined  men  *'sufl5ciently  armed  and  ac- 
coutred." The  State  was  forbidden  to  keep  *'any  body 
of  forces"  in  time  of  peace,  unless  Congress  should  deem  it 
necessary  as  a  garrison. 

Under  our  Constitution  each  State  maintains  a  militia, 
some  of  the  States  having  bodies  of  the  highest  class  in  dis- 
cipUne  and  equipment.  By  act  of  Congress  the  methods 
of  training  are  uniform,  so  that  when  bodies  from  different 
States  are  brought  together  they  work  as  one. 

The  Nation  may  call  out  the  militia  of  the  State  for  three 
purposes  only :  (i)  to  execute  the  laws  of  the  Union  (the 
Constitution,  the  Acts  of  Congress,  and  the  treaties) ;  (2)  to 
suppress  insurrections  (the  open  and  active  opposition  of  a 
number  of  persons  to  the  execution  of  law) ;  and  (3)  to  repel 
invasions,  that  is,  the  entrance  of  an  enemy  for  war.  Con- 
gress has  authorized  the  President  to  make  those  calls. 

It  is  noticeable  that  the  militia  is  not  in  the  power  of  the 
Pr<3sident,  an^l  that  the  authority  of  Congress  over  it  is 
ii.mited  to  thr6(? 'purposes.  Here,  again,  both  the  President 
^id  the  Congress  are  prevented  from  achieving  an  armed 
dictatorship. 


Its  Sources  and  Apylication  77 

To  provide  for  organizing,  arming,  and  disciplin- 
ing the  Militia,  and  for  governing  such  Part  of  them 
as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respectively,  the  Ap- 
pointment of  the  Officers,  and  the  Authority  of  trainm 
ing  the  Militia  according  to  the  discipUne  prescribe™ 
by  Congress ;  ^^ 

^^  Under  this  clause  Congress  has  from  the  beginning' pro- 
vided for  the  training  and  the  maintenance  of  the  ;|:pilitia^ 
The  National  Defence  Act  of  191 6  revised  and  extended 
preceding  legislation.  There  are  a  National  Guard/  a  NavaJ 
and  an  Unorganized  Militia.  For  the  purpose  of  maintain^ 
ing  appropriate  organizations  and  to  assist  in  instruction 
and  training  the  President  is  authorized  to  assign  the  Na- 
tional Guard  of  the  State  to  divisions,  brigades,  and  other 
tactical  units  and  to  detail  officers  from  either  the  National 
Guard  or  the  regular  Army  to  command  such  units. 

The  watchfulness  of  the  people  over  State  authority  and 
their  fear  of  the  encroachment  of  National  power  are  exhib- 
ited again  in  the  provision  that  the  militia  must  be  officered 
by  appointees  of  the  State.  Of  such 'a  military  body  the 
State  would  have  no  fear.  Besides,  officials  of  the  State 
would  be  better  informed  as  to  who  would  be  competent  as 
officers.  It  was  once  a  threatening  question  whether  mi- 
litia in  the  service  of  the  United  States  could  be  commanded 
by  any  but  militia  officers  and  the  President ;  but  any  officer 
under  the  commander  in  chief  (the  President)  outranking 
the  militia  officer  may  command. 

The  Articles  of  Confederation  provided  (Art.  IX,  sec.  4) 
that  the  Nation  should  appoint  "all  officers  of  the  land 
forces  in  the  service  of  the  United  States,  excepting  regi- 
mental officers."  The  clause  in  our  Constitution  was  prob- 
ably intended  to  restate  that  idea. 

Hamilton  said  that  the  powers  granted  in  this  clause  are 
naturally  incident  to  the  "common  defence"  of  the  Nation. 


^      '  ■  .       ] 

78  Constitution  of  the  United  States 

To  exercise  exclusive  Legislation  in  all  Cases 
whatsoever,  over  such  ^District  (not  exceeding  ten 
Miles  square)  as  may,  by  Cession  of  particular  States, 
and  the  Acceptance  of  Congress,  become  the  Seat  of 
the  Government  of  the  United  States, ^^  and  to  exer- 
cise like  Authority  over  all  Places  purchased  by  the 
Consent  of  the  Legislature  of  the  State  in  which  the 
Same  shall  be,  for  the  Erection  of  Forts,  Magazines, 
Arsenals,  dock- Yards,  and  other  needful  Buildings ; 

^^  This  refers  to  the  coming  District  of  Columbia,  where 
a  city  was  to  rise  and  be  called  Washington.  In  1 788-1 789 
Maryland  ceded  to  the  Nation  sixty  square  miles  east  of 
the  Potomac  and  Virginia  ninety  square  miles  west.  The 
cession  by  Virginia  was  returned  in  1846.  The  District 
is  governed  directly  by  Congress. 

In  1793  Washington  laid  the  corner  stone  of  the  Capitol. 
The  building  of  the  White  House  had  been  begun  the  year 
before.  In  1800  President  Jefferson  transferred  the  seat 
of  government  from  Philadelphia  to  Washington. 
^  Where  the  Nation  estabHshes  a  fort,  a  magazine,  an  ar- 
senal, a  post  office,  or  a  dockyard  in  a  State,  the  Nation 
assumes  control  over  the  land  to  the  exclusion  of  State 
authority. 

This  clause  may  have  had  its  origin  in  an  unhappy  ex- 
perience of  Congress,  which  indignantly  left  Philadelphia 
and  sat  at  Princeton  because  Pennsylvania  had  been  un- 
able or  unwilling  to  protect  it  near  the  close  of  the  Revo- 
lution from  mistreatment  by  a  body  of  mutineers  of  the  Con- 
tinental Army.  It  was  determined  that  the  National  Gov- 
ernment should  be  upon  its  own  premises  and  within  its 
own  control.  Further,  it  was  felt  that  the  capital  should 
not  be  also  the  capital  of  a  State,  or  a  large  commercial 
city. 

The  choice  of  a  site  for  the  National  capital  resulted  from 
a  compromise  effected  by  Secretary  of  State  Jefferson  and 


Its  Sources  and  Application  79 

Secretary  of  the  Treasury  Hamilton.  Congress  was  at 
deadlock  respecting  a  bill  for  the  assumption  of  State  debts, 
States  like  Virginia,  which  had  kept  their  debts  well  up, 
opposing  the  assumption  of  the  debts  of  those  badly  de- 
Unquent.  Nor  could  Congress  come  to  an  understanding 
as  to  where  the  capital  of  the  United  States  should  be.  Jef- 
ferson undertook  to  influence  votes  enough  to  pass  the 
Assumption  Bill  if  Hamilton  would  procure  votes  enough 
to  establish  the  capital  somewhere  on  the  Potomac  RiVer. 
The  stipulation  was  carried  out. 

To  prevent  encroachments  upon  the  State  it  is  required 
that  ^*the  consent  of  the  legislature"  be  given  to  the  pur- 
chase by  the  Nation  of  grounds  for  forts,  magazines,  ar- 
senals and  other  buildings. 

—  And 

To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing 
Powers,  and  all  other  Powers  vested  bytEs  Constitu- 
tion in  the  Government  of  the  United  States,  or  in  any 
Department  or  Officer  thereof^^^ 

^°  This  clause  has  been  aptly  described  as  "  the  most  solid 
and  excellent  work  done  by  the  [Constitutional]  Con- 
vention." It  made  a  Constitution  adaptable  to  unforeseen 
conditions  and  serviceable  for  all  time.  For  example,  it 
enabled  Congress  to  pass  many  laws  under  the  commerce 
clause  for  the  control  of  the  steamboat  when  it  came,  of! 
the  railway,  of  the  telegraph,  of  the  telephone,  of  the^ 
airplane,  all  undreamed  of  when  the  clause  was  written. 
After  granting  to  Congress  power  in  twenty  particular  in- 
stances the  people  say  in  this  clause  that  Congress  may  pass 
all  additional  laws  that  time  and  circumstance's  may  make 
necessary  or  proper  to  give  full  execution  and  efficiency  to 
each  or  all  of  the  twenty  grants  of  power.  Experience  under 
the  Articles  of  Confederation  had  made  this  clause  so  plainly 


80  Constitution  of  the  United  States 

desirable  that  hardly  any  contention  was  raised  by  it  in 
the  Constitutional  Convention.     It  neither  grants  a  new 
power  nor  enlarges  any  of  the  others.    Under  the  ordinary 
rules  of  interpretation  what  is  stated  in  this  clause  would 
be  implied  had  the  language  been  omitted.     But  it  was 
deemed  necessary  to  express  it  clearly  —  to  put  it  beyond 
question  that  such  restrictions  as  that  of  the  Articles  / 
of  Confederation  (Art.  II),  that  each  State  should  re-  S 
tain  the  powers  *^  not  by  this  Confederation  expressly  dele-  / 
gated  to  the  United  States  in  Congress  assembled",  should    i 
not  embarrass  the  new  Nation.    It  has  been  said  that  the 
grant  of  power  to  do  what  may  be  necessary  is  express  and 
not  impHed.    However,  it  is  the  custom  to  speak  of  a  power 
necessarily  flowing  from  the  previous  grant  of  another  power 
as  an  impHed  power. 

The  question  of  implied  powers,  in  a  large  aspect,  first 
arose  in  Jefferson^s  administration  (1803)  over  the  purchase 
of  Louisiana  from  France.  Jefferson  was  a  ''strict  con- 
structionist"—  nothing  was  constitutional  in  his  view  if 
it  was  not  clearly  written  in  the  fundamental  law.  But  the 
Constitution  does  not  expressly  authorize  the  purchase  of 
territory.  He  was,  therefore,  between  a  theory  of  consti- 
tutional law  and  a  great  necessity  of  governmental  adminis- 
tration. In  a  message  to  Congress  he  referred  to  the  con-  ^ 
trol  of  the  Mississippi  by  France  and  mentioned  the  recent 
"  suspension  of  our  right  to  deposit  at  the  port  of  New  Or- 
leans." He  at  first  felt  an  amendment  to  the  Constitution 
necessary  to  the  exercise  of  such  power,  but  "if  our  friends 
think  differently",  he  added,  "certainly  I  shall  acquiesce 
with  satisfaction."  But  the  Senate  confirmed  the  treaty 
(Note  88)  of  purchase  and  the  House  of  Representatives 
originated  the  money  bill  (Note  37)  necessary  to  carry  it 
out  without  so  much  as  even  proposing  an  amendment. 
The  very  first  clause  granting  power  to  Congress  authorizes 
it  to  "provide  for  the  common  defence  and  general  wel- 
fare of  the  United  States."    That  is  precisely  what  was 


Its  Sources  and  Application  81 

held  in  mind  by  Jefferson  and  Congress  when  the  purchase 
of  Louisiana  was  made,  and  the  control  of  the  Mississippi 
River  acquired.  The  Constitution  therefore  gave  the  power 
to  purchase. 

Commenting  on  this  purchase  by  Jefferson  (Anti-Feder- 
alist or  Republican)  when  there  was  no  express  clause 
in  the  Constitution  to  warrant  it,  John  Quincy  Adams, 
whose  father  (Federalist)  had  been  a  spirited  opponent 
of  the  great  strict-constructionist,  said:  **It  naturalizes 
foreign  nations  in  a  mass.  It  makes  French  and  Spanish 
laws  a  part  of  the  laws  of  the  Union.  .  .  .  And  all  this 
done  by  an  administration  which  came  in  blowing  a  trum- 
pet against  implied  powers ! " 

One  other  great  illustration,  out  of  many  cases,  will  sufl&ce. 
In  1 79 1  the  Bank  of  the  United  States  was  created  by  Con- 
gress in  support  of  Hamilton's  financial  policy  for  making 
stable  the  currency  and  estabHshing  the  National  cred5t. 
No  power  to^charter'baiiks  or  corporations  is  expressed  in 
the  Constitution.  In  1818  Maryland  passed  a  law  taxing 
the  paper  used  in  issuing  money  by  all  banks  not  chartered 
by  its  legislature  This  affected  the  operations  of  a  branch 
in  Maryland  of  the  Bank  of  the  United  States  and  brough^  j 
a  direct  conflict  of  authority  between  the  State  and  the  Na-# 
tion.  The  Supreme  Court  of  the  United  States,  in  an 
opinion  written  by  Chief  Justice  Marshall,  held  (i)  that  in 
pursuance  of  its  fiscal  or  financial  policy  Congress  had  power 
to  establish  a  national  bank,  and  (2)  that  tKe  State  could 
not  hamper  or  burden  the  proper  activities  of  the  Nation. 

As  to  every  one  of  the  twenty  grants  of  power  Congress 
has  from  time  to  time  enacted  laws  which  it  deemed  neces- 
sary to  make  the  power  effectual.  Indeed,  as  before  in- 
dicated, this  is  what  has  fitted  the  Constitution  to  new  or 
unforeseen  conditions  as  they  arose,  and  kept  it  the  con- 
trolling force  in  the  development  of  thirteen  scattered  agri- 
cultural communities  into  a.  Nation  of  forty-eight  great 
States  of  immeasurable  material  wealth,  of  unexampled 


SC^  Constitution  oj  itw  United  States 


political  freedom,  and  of  the  highest  educational  and  social 
^dvanj^ges. 

V^Sj^ction  9.  The  Migration  or  Importation  of  such 
--^y/P^xsons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Con- 
gress prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a  Tax  or  duty  may  be  imposed  on  such 
Importation,  not  exceeding  ten  dollars  for  each  Per- 
son." 

"As  the  preceding  section  deals  with  the  affirmative 
powers  of  Congress,  this  section  has  to  do  with  what  has 
been  called  its  negative  powers.  It  enumerates  ten  things 
which  Congress  may  not  do. 

The  very  first  of  them  is  that  the  importation  of  slaves 
shall  not  be  stopped  by  Congress  before  1808,  a  concession 
which  delegates  from  the  northern  States  to  the  Consti- 
tutional Convention  granted  in  return  for  the  votes  of 
South  Carolina  and  Georgia  in  support  of  the  commerce 
clause  (Note  45).  This  subject  is  referred  to  again 
(Note^i3o)  in  the  proviso  of  Article  V.  Thisjs.  the  second 
pHhreeXNptes  II  and.i2i)  compronaises  of  the. Constitution 
respecting  slavery.     Slavery  then  was  believed  to  be  dying. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebel- 
lion or  Invasion  the  public  Safety  may  require  it.^^ 

^2  By  the  ancient  writ  of  habeas  corpus  (have  the  body) 
an  English  court  commanded  the^ jailor  or  other  officer 
having  a  prisoner  in  charge  to  bring  him  before  the  bar  for 
inquiry  as  to  the  legality  of  his  restraint  from  liberty.  Men 
had  been  cast  into  prison  without  formal  charge  and  left 
there  without  hearing  or  trial.  In  the  Petition  of  Right  to 
which  Charles  I  was  obliged  to  assent  (1628)  the  sovereign 
was  charged  with  violation  of  this  privilege,  which  ante- 


Its  Sources  and  Application  83 

dated  Magna  Charta  (i  2 1 5) .  It  was  prayed  in  the  Petition 
that  "freemen  be  imprisoned  or  disseized  only  by  the  law 
of  the  land,  or  by  due  process  of  law,  and  not  by  the  King's 
special  command  without  any  charge."  In  the  reign  of 
Charles  II  (1679)  the  first  Habeas  Corpus  Act  was  passed 
to  make  more  definite  the  rights  of  Englishmen  which  had 
been  disregarded  on  one  pretext  or  another.  In  the  reign 
of  George  III  the  first  act,  relating  to  charges  of  crime,  was^  ,-• 
supplemented  by  an  act  dealing  with  deprivation  of  liberty ' 
for  any  other  reason. 

Knowing  in  how  many  ways  this  right  of  the  Englishman 
and  the  English  colonist  in  America  had  been  defeated, 
the  framers  of  our  Constitution  forbade  suspension  of  the 
privilege  except  in  two  similar  contingeficies ;  but  even  in 
time  of  (i)  rebelUon^or  (2)  invasion  the  privilege  is  not  to 
be  suspended  unless  the  public  safety  may  require  it.         ' 

As  this  clause  isln  Article  I  of  the  Constitution,  relatin^sT 
to  legislative  powers,  and  as  the  subject  is  not  mentioned  ^ 
in  Article  II,  dealing  with  the  powers  of  the  Executive  (Pres- — ' 
ident),  it  was  held  by  Chief  Justice  Taney  shortly  after 
the  outbreak  of  the  Civil  War  that  President  Lincoln  did 
not  have  power  to  suspend  the  privilege  of  the  writ.  Con- 
gress alone  possessing  that  authority.     The  President  had 
suspended  the  privilege  in  several  instances  where  former 
officers  of  the  army  or  the  government  had  gone  over  to 
the  Confederacy  and  were  active  in  the  North  against  the   /^^ 
Union.     Such  persons  were  put  in  prison  and  held  with-  A. 
out  trial. 

To  set  the  matter  at  rest  Congress  later  authorized  Presi- 
dent Lincoln  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus. 

In  England  a  habeas  corpus  Suspension  Act  is  passed  an- 
nually which  partially  annuls  the  operation  of  the  celebrated 
Habeas  Corpus  Act  of  Charles  II  (1679).  The  Suspension 
Act  makes  it  impossible  for  any  person  imprisoned  under  a 
warrant  signed  by  the  Secretary  of  State  on  a  charge  of 


84  Constitution  of  the  United  States 

high  treason  or  on  suspicion  of  treason  to  insist  upon  being 
either  discharged  or  put  on  trial.  The  Government  of  Eng- 
land may  defer  indefinitely  the  formal  accusation  and  pubHc 
trial  of  persons  imprisoned  on  suspicion  of  treasonable  prac- 
tices.   That  cannot  be  done  in  the  United  States. 

No  Bill  of  Attainder  ^3 

^^  The  bill  of  attainder  in  England  was  an  act  of  Parlia- 
ment by  which  a  man  was  tried,  convicted,  and  disposed  of 
without  a  jury,  without  a  hearing  in  court,  generally  Vith- 
out  hearing  the  witnesses  against  him,  and  without  regard 
to  the  rules  of  evidence.  His  blood  was  attainted  or  cor-> 
rupted  legally  so  that  he  could  not  inherit  property  from 
others  nor  could  his  children  inherit  property  from  him. 
This  deprivation  of  property  was  contrary  to  the  charter 
of  Edward  III  (13 2 7-1 37 7),  which  said  that  no  one  should 
be  *'put  out  of  his  lands  or  possessions,  .  .  .  or  disinherited, 
.  .  .  without  being  brought  to  answer  by  due  process  of 
law."  Bills  of  attainder  were  first  passed  by  Parliament  in 
1459  and  were  often  employed  during  the  time  of  the  Tudors 
(1485-1603).  In  the  reign  of  Henry  VIII  (1509-1547)  theyl  /[ 
were  much  employed  to  punish  those  who  had  incurred  thej'l/' 
King's  displeasure  and  many  fell  victims  who  could  not  ^ 
have  been  charged  with  any  offence  under  existing  law. 
During  the  Long  Parliament  (nearly  twenty  years)  begin- 
ning in  the  reign  of  Charles  I  (1625-1649)  Parliament  itself 
made  effective  use  of  the  bill  of  attainder  to  dispose  of  ob- 
jectionable persons.  In  the  reign  of  William  III  and  Mary  . 
(1690)  an  act  was  passed  ^'for  the  attainder  of  divers  ^ 
rebels";  and  Macaulay  says  that  ''it  was  not  even  pre- 
tended that  there  had  been  any  inquiry  into  the  guilt  of 
those  who  were  thus  proscribed."  In  1870  forfeiture  was 
abolished  by  the  English  Government  except  upon  out- 
lawry, and  it  was  provided  that  "no  judgment  of  or  for 
any  treason  or  felony  shall  cause  any  corruption  of  blood 
or  any  forfeiture  or  escheat."      For   his    activities    and    - 


Its  Sources  and  Application  85 

writings  in  behalf  of  colonial  rights  Jefferson's  name  was 
included  in  a  bill  of  attainder  presented  in  Parliament, 
but  it  was  not  pressed  to  a  vote. 

The  convenience  of  the  bill  of  attainder  when  ruthless 
power  found  in  its  way  legal  safeguards  to  the  man  was  well 
illustrated  in  the  case  of  Thomas  Wentworth,  Earl  of  Straf- 
ford and  chief  adviser  of  Charles  I,  who  was  impeached 
(1640)  and  tried  before  the  House  of  J^ords  on  the  charge 
of  attempting  to  subvert  the  liberties  of  England.  As  the 
evidence  seemed  insujficient,  and  as  Strafford  defended  him- 
self with  great  ability,  his  prosecutors,  foreseeing  an  ac- 
quittal, withdrew  the  impeachment  and  subsequently  at- 
tacked him  by  a  bill  of  attainder  which  passed  both  Houses 
and  received,  under  the  pressure  of  public  opinion,  the  un- 
willing signature  of  the  King.     Strafford  was  beheaded. 

Bills  of  attainder  were  known  in  America  in  colonial 
times.  In  1777  Thomas  Jefferson  wrote  a  bill  of  attainder 
for  an  outlaw  in  Virginia.  This  method  of  punishment 
was  often  used  during  the  Revolution.  In  Lecky's  *' Eng- 
land in  the  Eighteenth  Century"  it  is  mentioned  that  m  the 
State  of  New  York  an  act  confiscated  all  the  goods  oFlifty-  * 
nine  royalists,  including  three  women,  and  in  a  footnote 
the  author  makes  reference  to  *'a  long  list  of  these  acts  of 
attainder." 

Having  beheld  the  injustice  of  such  punishment,  the 
framers  of  our  Constitution  put  in  the  instrument  two  pro-  ^ 
hibitions  of  bills  of  attainder,  this  one  to  curb  the  National 
Government,  and  one  in  the  section  following  (Note  71) 
preventing  such  legislation  by  the  government  of  a  State. 

or  ex  post  facto  Law  shall  be  passed.  ^^ 

^^  An  act  is  ex  post  facto  (after  the  deed  or  fact)  when  it 
(i)  makes  a  criminal  offence  of  what  was  innocent  when 
done,  or  when  it  (2)  aggravates  a  crime,  making  it  greater 
than  it  was  when  committ^ed,  or  when  it  (3)  inflicts 
a  greater  punishment  than  was  prescribed  at  the  time  the 


86  Constitution  of  the  United  States 

crime  was  perpetrated,  or  when  it  (4)  alters  the  rules  of 
evidence  in  order  to  secure  a  conviction,  or  when  it  in  effect 
if  not  in  purpose  (5)  deprives  the  accused  of  some  protection 
to  which  he  had  become  entitled.  Thus  a  law  changing 
the  number  in  a  jury  from  twelve  to  eight  after  a  crime  had 
been  committed  was  held  ex  post  facto  as  to  the  accused, 
who  could  not  be  deprived  of  his  liberty  unless  by  a  jury  of 
twelve.  And  an  act  passed  after  a  man  had  been  convicted 
and  sentenced  to  death,  requiring  that  persons  under  such 
sentence  be  kept  in  soHtary  confinement,  was -held  ex  post 
facto  as  to  him  because  imposing  additional  punishment. 
But  acts  changing  punishment  from  hanging  to  electro- 
cution have  been  held  by  several  courts  not  to  be  ex  post 
facto,  for,  as  one  of  the  courts  said,  the  act,  so  far  as  it  could  j 
tell,  might  have  mitigated  rather  than  increased  the  punish-  * 
ment. 

Nor  was  the  law  of  a  State  ex  post  facto  which  gave  the 
State  an  appeal  in  criminal  cases  which  did  not  exist  at  the 
time  the  crime  was  committed,  the  appeal  of  the  State  re- 
sulting in  a  conviction  of  the  defendant,  the  Supreme  Court 
of  the  United  States  holding  that  the  legislation  of  the  State 
did  not  make  criminal  what  was  innocent,  or  aggravate  an 
offence,  or  alter  the  rules  of  evidence,  or  otherwise  deprive 
the  accused  of  a  substantial  right. 

Near  the  close  of  the  Civil  War  an  act  was  passed  by  Con- 
gress that  no  attorney  should  be  permitted  to  practice  in 
the  Supreme  Court  of  the  United  States  or  any  other  Federal 
court,  or  be  heard  by  virtue  of  any  previous  admission,  un- 
til he  had  first  taken  an  oath  that  he  had  not  voluntarily 
given  aid,  counsel,  or  encouragement  to  persons  engaged  in 
armed  hostihty  to  the  United  States  and  that  he  had  not 
sought  or  accepted  office  in  hostility  to  the  National  Govern- 
ment. A  man  who  had  served  in  both  the  House  and  the 
Senate  of  the  Confederate  States  of  America  received  a  par- 
don from  the  President  in  1865.  He  applied  for  readmission 
to  practice  in  the  Supreme  Court  without  being  required 


Its  Sources  and  Application  87 

to  take  the  oath  mentioned,  which  of  course  he  coiild  not 
take.  He  contended  that  the  act  was  unconstitutional  be- 
cause ex  post  facto,  and  he  also  claimed  the  right  under  his 
pardon.  The  Supreme  Court  held  that  as  the  oath  could 
not  be  taken,  the  act  operated  "as  a  legislative  decree  of 
perpetual  exclusion",  a  method  of  punishment  which  did 
not  exist  at  the  time  the  acts  of  the  applicant  were  done. 

No  Capitation,  or  other  direct,  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Censusuar  Enumeration 
herein  before  directed  to  be  taken.^^ 

^^  A  capitation  {caput,  meaning  head)  or  poll  (head)  tax  ^ 
is  one  levied  upon  the  individual  without  regard  to  his  pos- L 
sessions  in  lands  or  personal  property.  The  poll  or  capi- 
tatioii  tax  was  cotoimon  in  early  New  England.  Wliile  con- 
demning the  capitation  tax  in  "  The  Federalist ",  and  express- 
ing the  belief  that  taxes  sh'ould  be  raised  indirectly,  Hamil- 
ton was  nevertheless  in  favor  ol  the  constitutional  provision 
permitting  the  laying  of  head  taxes  in  case  ot~^mergericy ; 
for  he  mentioned  that  the  sources  of  reveliiue  then  were  few. 
This  clause  forbids  Congress  to  la^  a  tax  upon  individuals 
exceptjinifonnlY,  ^-nd  in  proportion  to  the  census  provided 
for  (Note  lo)  in  Article  I,  Section  2,  Clause  3,  where  this 
subject  is  first  mentioned. 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State.  ^^ 

^^  This  is  the  only  prohibition  in  the  Constitution  upon 
the  taxing  power  of  Congress.  A  like  prohibition  as  to 
taxing  either  imports  or  exports  is  declared  (Note  73)  agafnst 
the  State  fegislature  in  Section  10,  Clause  2,  below. 

This  provision  was  demanded  by  the  Carolinas  and 
Georgia.  They  waived  their  objections  to  taxes  on  imports 
in  consideration  of  this  clause.  Some  of  the  agricultural 
States  were  in  much  fear  of  the  taxing  power. 

A  tax  of  one  cent  a  pound  on  all  filled  cheese  manufactured 


88  Constitution  of  the  United  States 

was  held  by  the  Supreme  Court  not  violative  of  this  clause 
as  to  owners  of  cheese  which  was  exported,  for  the  tax  cast 
no  more  burden  on  exported  articles  than  was  borne  by 
those  not  exported.  So  during  the  Civil  War  a  tax*  was 
imposed  on  all  cotton  and  tobacco.  It  was  contended  by 
men-  producing  and  owning  that  as  the  larger  part  of  those 
products  was  exported  the  tax  was  unconstitutional ;  but 
of  course  the  tax  was  not  laid  because  of  the  exportation 
—  the  commodities  were  called  upon  to  pay  the  tax  re- 
gardless of  their  entering  foreign  commerce.  However,  an 
act  of  Congress  (1898)  to  meet  the  expenditures  of  the 
War  with  Spain  was  held  (1901)  unconstitutional  under 
this  clause  as  to  a  stamp  tax  imposed  on  a  bill  of  lading 
covering  shipments  of  grain  for  export,  that  being  a  tax 
imposed  on  the  exporter  only  and  for  the  reason  that  he 
exported,  a  tax  plainly  prohibited  by  this  clause. 

No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over 
those  of  another :  nor  shall  Vessels  bound  to,  or  from, 
one  State,  be  obliged  to  enter,  clear,  or  pay  Duties  in 
another.  ^^ 

^^  This  proposal  was  placed  before  the  Constitutional  Con- 
vention by  the  delegates  from  Maryland,  their  fear  being 
that  congressional  legislation  might  prefer  Chesapeake  Bay 
ports  of  Virginia  to  those  of  their  State.  Under  the  At 
tides  of  Confederation,  as  has  been  seen,  each  State  was  free 
to  impose  duties  and  make  regulations  to  the  disadvantage 
of  others,  and  it  was  desired  that  equality  in  commerce  be 
maintained  in  the  future. 


\. 


No  Money  shall  be  drawn  from  the  Treasury,  but 
iiix   Consequence   of  Appropriations  made   by  Law;s 
land  a  regular  Statement  and  Account  of  the  Receipts  \ 
*and  Expenditures  of  all  public  Money  shall  be  pub- 
lished from  time  to  time.^^ 


Its  Sources  and  Application  89 

®^  In  this  clause  is  repeated  the  lesson  of  English  history, 
that  it  should  not  be  in  the  power  of  the  Executive  alone 
or  of  the  legislature  alone  to  raise  or  spend  money  at  will.r- 
In  Section  7  preceding  (Note  37)  is  the  requirement  that  all    ■  ^ 
bills  for  raising  money  must  originate  in  the  House  of  Rep-  \ 
resentatives ;  but  they  must  then  [pass  the  Senate  and  be 
signed  by  the  President.     For  ov^r  half  a  century  the  ex=      ' 
pression  *' appropriations  made  by  law"  was  construed  to 
mean  by  a  bill  passed  by  both  Houses  and  signed  by  the 
President.     In  1842  Congress  began  to  make  appropriations 
by  joint  resolution ;  but  as  that  also  must  be  signed  by  the 
President  (Note  39),  there  is  no  real  difference. 

No  Title  of  Nobility  shall  be  granted  by  the  United 
States :  And  no  Person  holding  any  Office  of  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the 
Congress,  accept  of  any  present.  Emolument,  Office, 
or  Title,  of  any  kind  whatever,  from  any  King,  Prince, 
or  foreign  State.^^ 

^^''A  wise  jealousy  of  foreign  influences  in  the  affairs 
of  government,"  says  a  writer  on  our  Constitution,  ^'will 
amply  justify  this  provision." 

A  provision  in  almost  the  same  words  was  in  the  first  sec- 
tion  of  Article  VI  of  the  Articles  of  rnnfederation.  It  per- 
nutted  persons  holding  office  under  a  State  to  accept,  with 
the  assent  of  Congress,  the  objectionable  gifts  or  distinc- 
tions ;  but  the  constitutions  of  at  least  two  of  the  States 
at  that  time  forbade  them  altogether.  Of  course,  a  repub- 
lic born  of  the  misrule  of  a  monarchy  should  not  grant  titles 
of  nobility.  The  institution  called  nobility  had  possessed 
itself  of  most  of  the  posts  of  trust  and  honor  to  the  hope- 
less exclusion  of  the  rest  of  the  people,  and  by  prestige  and 
by  the  favoritism  of  the  government  of  which  it  was  so  large 
a  part  it  had  gained  the  greater  share  of  the  lands  and  other 
wealth  of  England  and  of  the  continental  countries. 

A  gift  from  the  King  of  France  to  our  ambassador 


90  Constitution  of  the  United  States 

during  the  Revolution  is  said  to  have  suggested  this 
provision.  ''Any  present  ...  of  any  kind  whatever'* 
was  said  by  the  Attorney- General's  office  in  1902  to  pre- 
vent the  acceptance  of  photographs  from  Prince  Henry  of 
Prussia,  brother  of  the  Emperor  of  Germany,  by  civil 
and  military  officers  of  the  United  States.  But  while 
Jefferson  was  President  he  accepted  (1806)  from  Alexan- 
der I  of  Russia  a  bust  of  that  Emperor,  which  he  said  would 
be  ''one  of  the  most  valued  ornaments  of  the  retreat  I 
am  preparing  for  myself  at  my  native  home."  He  said 
that  he  had  laid  it  down  as  a  law  of  his  official  conduct  not 
to  accept  anything  but  books,  pamphlets,  or  other  things 
of  minor  value;  but  his  "particular  esteem"  for  the  Em- 
peror "places  his  image  in  my  mind  above  the  scope 
of  law." 

This  prohibition  of  the  granting  of  titles  of  nobility  by 
the  Nation  is  repeated  (Note  72)  as  to  the  States  in  the  first 
clause  of  the  next  section. 

By  the  charter  issued  to  Lord  Baltimore  in  1632  he  was 
authorized  to  grant  titles  of  nobihty  in  Maryland.  A 
claim  to  like  authority  was  made  under  one  or  two  other 
colonial  charters. 

In  1 8 10  Congress  proposed  an  amendment  to  add  a  heavy 
penalty  to  this  clause  by  making  any  person  "cease  to  be 
a  citizen  of  the  United  States"  and  "incapable  of  holding 
any  office  of  trust  or  profit"  who  should,  without  the  con- 
sent of  Congress,  accept  "any  title  of  nobility  or  honor", 
or  "any  present,  pension,  office,  or  emolument  of  any  kind 
whatever  from  any  emperor,  king,  prince,  or  foreign  power." 
At  that  time  a  brother  of  the  Emperor  Napoleon  of  France 
was  in  the  United  States.  The  proposed  amendment 
lacked  the  necessary  ratifying  vote  of  only  one  State. 

Section  10.  No  State  shall  enter  into  any  Treaty. 
Alliance,  or  Confederation;  grant  Letters  of  Marque 
and  Reprisal;  coin  Money;  emit  Bills  of  Credit;  ^^    y 


Its  Sources  and  Application  91 

^^  All  the  powers  in  this  section  denied  to  the  States  are 
in  Section  8  granted  to  the  Nation.  As  the  exercise  of 
such  powers  by  the  States  had  helped  to  wreck  the  Govern-' 
ment  under  the  Atticles  of_Confederation,  the  double  pre/ 
caution  was  taken  by  the  people  of  granting  them  to  the^ 
Nation  in  Section  8  of  this  Article  of  the  Constitution  and  ' 
denying  them  to  the  States  in  Section  lo.  Those  things 
are  essentially  National.  In  several  places  in  the  Consti- 
tution this  double-statement  of  power  is  employed.  By 
this  section  the  States  yielded  to  the  Nation  some  powers 
which  they  had  previously  exercised. 

Under  the  Articles  of  Confederation  the  worst  of  all  the 
troubles,  probably,  sprang  from  the  lack  of  National  con- 
trol of  money  and  credits,  and  it  was  frequently  stated  in 
the  Constitutional  Convention  that   those  evils  —  what 
Madison  called  ''the  pestilent  effects  of  paper  money" -s. 
must  be  abated  forever.    Nevertheless,  many  attempts  have! 
been  made  by  States  to  issue  paper  money,  that  is  to  "emit' 
bills  of  credit"  to  be  passed  as  money.    Those  acts  of  the  ] 
States  have,  of  course,  been  held  unconstitutional,  in  someJy 
instances  by  the  courts  of  the  issuing  States  —  for  the  Con-\ 
stitution  provides  (Note  134)  that  ''the  judges  in  every 
State  shall  be  bound  thereby  [by  the  National  Constitution], 
anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding."     But  bills  of  credit  or  certifi- 
cates of  indebtedness  which  are  not  intended  by  the  State 
to  circulate  as  money  do  not  fall  within  the  prohibition 
of  this  clause. 

make  any  Thing  but  gold  and  silver  Coin  a  Tender 
in  Payment  of  Debts ;  pass  any  Bill  of  Attainder,  ex 
post  facto  Law,  or  Law  impairing  the  Obligation  of 
Contracts,^! 

^^  The  command  in  the  preceding  section,  that  Congress 
shall  not  enact  attainders  or  ex  post  facto  laws,  is  here  re- 
peated as  to  the  States,  with  the  addition  that  the  State 


92  Constitution  of  the  United  States 

shall  not  impair  the  obligation  of  contracts.  This  was 
added  when  it  was  pointed  out  that  the  term  ex  post  facto 
relates  only  to  criminal  law.  The  provision  was  accordingly- 
framed  to  fit  civil  cases.  Therefore  the  State  may  not 
change  the  legal  standing  of  a  citizen  with  respect  either 
to  his  personal  conduct  or  to  his  contracts.  A  contract 
which  was  permissible  and  valid  at  the  time  that  it  was  en- 
tered into  cannot  be  rendered  void  or  be  in  any  wise  impaired 
by  subsequent  legislation  by  the  State,  or  by  the  county  or 
the  city  acting  under  powers  received  from  the  State.  The 
obligation  of  a  contract  is  its  binding  force  on  the  party 
making  it  which  the  law  at  the  time  it  was  made  would 
effectuate.  It  involves  the  promise  of  the  party  and  the 
sanction  of  the  law  that  the  promise  shall  be  carried  out. 
The  contracts  of  the  State  as  well  as  those  of  the  individual 
are  covered  by  this  clause.  Many  cases  have  arisen  in  which 
States  have  attempted  to  evade  the  obligations  of  contracts 
made  by  them  with  citizens.  To  illustrate,  where  a  State 
chartered  a  bank  and  profited  from  its  operations,  and  the 
law  creating  the  bank  provided  that  the  bills  or  money  issued 
by  it  should  be  receivable  in  payment  of  debts  due  to  the 
State,  such  as  taxes,  a  subsequent  act  of  the  legislature  re- 
pealing this  provision  of  the  Bank  Act  was  held  (1850)  by 
the  Supreme  Court  of  the  United  States  to  violate  this  clause 
of  the  Constitution.  When  the  citizen  accepted  the  induce- 
ment of  the  State  to  use  its  bank's  money  for  its  benefit 
a  contract  arose  under  which  the  State  was  obliged  to  render 
to  him  the  advantage  which  it  had  promised  and  for  which 
it  had  received  a  consideration. 

One  of  the  purposes  of  the  provision  was  to  prevent  States 
from  permitting  the  payment  of  debts  in  paper  money. 
Another  purpose  was  to  prevent  the  passage  of  insolvency 
laws  and  stay  laws  which  would  release  debtors  from  their 
present  obligation  to  pay.  In  addition  to  those  matters, 
contracts  of  States  themselves  had  been  repudiated.  ''The 
separate  legislatures  have  so  often  abused  the  obligation 


Its  Sources  and  Application  93 

of  contracts,"  wrote  Jefferson,  "that  the  citizens  themselves 
chose  to  trust  it  to  the  general  [National]  rather  than  to  their 
own  [State]  authorities."  On  the  same  subject  Chief  Jus- 
tice Marshall  said  ''a  course  of  legislation  had  prevailed 
in  the  States  which  weakened  confidence  of  man  in  man." 

No  provision  of  the  Constitution  has  received  more  fre- 
quent consideration  by  the  Supreme  Court  of  the  United 
States  and  by  the  Supreme  Courts  of  the  States. 

In  1758  the  remnant  of  the  Delaware  Indians  in  New 
Jersey  were  given  a  tract  of  land  by  the  State  in  considera- 
tion of  their  leaving  lands  which  they  were  occupying ;  and 
it  was  agreed  by  the  State  that  the  lands  to  be  given  to  the 
Indians  aforesaid  "shall  not  be  subject  to  any  tax,  any  law, 
usage,  or  custom  to  the  contrary  notwithstanding."  In 
1 801  the  legislature  of  New  Jersey  attempted  to  revoke 
the  tax  exemption  after  the  lands  had  been  sold  by  the 
Indians,  but  the  Supreme  Court  of  the  United  States  held 
(181 2)  that  the  act  of  revocation  was  void  for  conflict  with 
this  provision.  The  Court  said  that  the  privilege  to  be  free 
from  taxation  was,  by  the  terms  which  created  it,  annexed 
"to  the  land  itself."  The  exemption  therefore  went  with 
_the  land  to  the  purchaser,  who  could  not  be  deprived  of  it. 

The  Dartmouth  College  case  is  perhaps  the  most  cele- 
brated of  the  early  cases  arising  under  this  clause.  In  1 769, 
after  an  application  to  the  King  of  England  for  a  charter 
to  incorporate  a  religious  and  Hterary  institution,  and  upon 
the  representation  by  the  appHcants  that  large  contributions 
had  been  promised  for  the  project,  which  would  be  conferred 
upon  the  corporation  as  soon  as  chartered,  George  III  is- 
sued a  charter.  On  the  faith  of  that  grant  the  property 
promised  was  conveyed  to  the  corporation.  Gifts  of  land 
and  money  were  received  and  many  rights  acquired.  In 
1 81 6  the  legislature  of  New  Hampshire  passed  "an  act  to 
amend  the  charter  and  enlarge  and  improve  the  corporation 
of  Dartmouth  College."  The  Act  changed  the  name  college 
to  university,  and  the  reorganization  was  such  as  to  put 


94  Constitution  of  the  United  States 

the  property  and  the  franchise  in  the  possession  and  con- 
trol of  another  organization.  The  trustees  of  Dartmouth 
College  refused  to  recognize  the  amended  charter  and 
brought  a  proceeding  to  see  whether  the  acts  of  the^  legis- 
lature ''are  valid  in  law  ...  or  whether  the  same  acts 
are  repugnant  to  the  Constitution  of  the  United  States, 
and  so  void."  Daniel  Webster,  who  had  been  educated 
at  Dartmouth,  was  counsel  for  the  college.  The  Supreme 
Court  held  (1819)  that  the  legislation  of  New  Hampshire 
impaired  the  obligation  of  the  contract  under  which  the 
college  came  into  existence  and  was  to  continue  in  its  couffee, 
and  that  it  was  therefore  unconstitutional  and  void. 

The  withdrawal  for  a  time  of  the  remedy  of  a  creditor 
by  the  enactment  of  a  stay  law  is  unconstitutional.  So 
is  any  law  which,  under  the  pretence  of  changing  the 
remedy,  undertakes  to  compel  a  person  to  accept  something 
different  in  the  place  of  that  for  which  he  had  contracted. 
Any  law  which  gives  a  preference  in  payment  of  one  creditor 
to  another  which  did  not  exist  when  the  contracts  were  made 
is  invalid,  even  though  the  preferred  creditor  is  the  State 
itself.  This  is  true  of  any  law  which  takes  away  from  the 
creditor  a  substantial  right  which  the  contract  assured  to 
him,  as  the  right  to  the  possession  of  mortgaged  lands  un- 
til the  mortgage  debt  is  paid.  A  law  which  increases  the 
exemptions  from  executions  issued  on  judgments  so  as 
seriously  to  impair  the  value  of  the  remedy  and  reduce  the 
possibiHties  of  collection  is  void  under  this  clause. 

Contracts  for  the  purchase  price  of  slaves  were  enforced 
after  Emancipation,  notwithstanding  the  provision  in  the 
State  constitution  that  such  debts  should  not  be  paid ;  for 
the  constitutional  provision  of  the  State  was  a  *'law"  which 
impaired  the  obligation  of  a  contract  which  was  legally 
vaKd  at  the  time  that  it  was  made. 

The  contractual  right  of  the  owner  of  a  house  or  an  apart- 
ment to  the  possession  of  the  premises  upon  the  expiration 
of  the  term  agreed  upon  in  the  tenant's  lease  was  held  (7,021) 


Its  Sources  and  Application  95 

by  the  Supreme  Court  of  the  United  States  not  unconsti- 
tutionally impaired  by  a  rent  law  of  New  York  (1920)  de- 
claring the  existence  of  a  housing  emergency  and  providing 
that  in  a  city  of  a  million  population  or  more  no  action 
should  be  maintainable  to  recover  possession  of  premises 
occupied  as  a  dwelling  by  a  tenant  desiring  to  remain  and 
pay  a  reasonable  rent,  except  that  the  owner  might  have 
the  dwelling  for  his  personal  possession  or  to  tear  it  down 
for  the  construction  of  a  new  building.  Contracts  are  made 
said  the  court,  ''subject  to  this  exercise  of  the  power  of  the 
State  when  otherwise  justified",  referring  to  the  police 
power,  which  is  exerted  for  the  health,  safety,  and  well- 
being  of  the  people. 

Nor  did  the  law  operate  to  deprive  the  owner  of  property 
in  violation  of  the  Fourteenth  Amendment  (Note  173), 
for  in  many  cases  restrictions  upon  property  rights  for  the 
general  welfare  have  been  upheld  as  warranted  under  the 
police  power  of  the  State.  It  has  long  been  established, 
the  court  pointed  out,  that  the  owner  of  property  may  be 
restricted  in  his  income  or  rental,  as  by  laws  imposing  an 
excess  profits  tax,  or  an  income  tax,  or  by  laws  prohibiting 
usurious  interest. 

In  the  leading  case  on  the  power  of  the  State  to  regulate 
the  rates  which  may  be  charged  the  pubKc  for  the  use  of 
private  property,  the  Supreme  Court  stated  (1876)  the 
governing  principle  as  follows : 

'' Property  does  become  clothed  with  a  public  interest 
when  used  in  a  manner  to  make  it  of  public  consequence, 
and  affect  the  community  at  larsM^gWhen,  therefore,  one 
devotes  his  property  to  a  use  mmffj/jlfk^  pubHc  has  an  in- 
terest, he,  in  effect,  grants  to  thepublic  aa  interest  in  that 
use,  and  must  submit  to  be  contMiH|fe  the  public  for  the 
common  good,  to  the  extent  of  ni^interest  he  has  thus 
created.  He  may  withdraw  his  grant  by  discontinuing 
the  use ;  but,  so  long  as  he  maintains  the  use,  he  must  sub- 
mit to  the  controL" 


96  Constitution  of  the  United  States 

or  grant  any  Title  of  Nobility.  ^^ 

"^  In  the  preceding  section  (Note  69)  the  Nation  is  for- 
bidden to  grant  titles  of  nobility.  The  repetition  of  the 
commandment  as  to  the  State  shows  the  dislike  which  the 
Fathers  had  for  that  institution  which,  more  than  anything 
else,  had  made  Hfe  for  the  Colonies  imder  English  rule  im-  ■ 
possible.  All  the  repressive  and  burdensome  plans  of  the 
Government  of  George  III  found  prompt  and  generally 
unanimous  support  in  the  House  of  Lords,  then  the  organ- 
ized expression  of  intolerant  and  intractable  nobility.  The 
Constitutional  Convention  was  determined  that  this  nox- 
ious thing  never  should  be  found  in  the  United  States. 

Titles  of  nobility  have  been  conferred  by  the  sovereign 
of  England  upon  citizens  of  Canada. 

No  State  shall,  without  the  Consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  ex- 
cept what  may  be  absolutely  necessary  for  executing 
it's  inspection  Laws :  and  the  net  Produce  of  all  Du- 
'ties  and  Imposts,  laid  by  any  State  on  Imports  or 
Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States ;  and  all  such  Laws  shall  be  subject  to 
the  Revision  and  contjpol  of  the  Congress J^ 

^^  Here  is  another  recurrence  to  the  National  prerogative 
under  the  commerce  clause  (Note  45)  -to  regulate  trade. 
Every  precaution  was  taken  to  keep  the  State  from  such 
interferences  as  those  which  had  defeated  the  Union  under 
the  Articles  of  Conf^Mjj^on. 

No  State  shaflPHIHM:  the  Consent  of  Congress, 
lay  any  duty  of  ^mfJfey  keep  Troops,  or  Ships  of 
War  in  time  of  Pei^enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a  foreign  Power, 
or  engage  in  War,  unless  actually  invaded,  or  in  such 
iTTjinAnev^  Danger  as  will  not  admit  of  delay, ^^ 


Its  Sources  and  Application  97 

^^  In  this  sentence  are  four  bars,  none  of  which  the  State 
may  cross  without  the  permission  of  Congress :  it  may  not 
(i)  lay  any  duty  of  tonnage  (tax  upon  the  cubical  capacity 
of  a  ship)/  for  that  might  work  a  hindrance  to  commerce 
and  bring  conflict  with  the  regulatory  power  of  the  Nation 
under  the  commerce  clause;  it  may  not  (2)  keep  troops 
or  ffips  of  war  (the  State  militia,  organized  for  discipline, 
and  belonging  to  civil  life,  not  being  troops  within  this 
clause),  for  standing  troops  within  a  State  might  bring  con- 
flicts with  other  States  or  other  governments,  or  even  with 
the  Nation ;  it  may  not  (3)  enter  into  agreements  (political) 
with  other  States  or  with  foreign  powers,  for  thereby  the 
National  Government  might  be  embarrassed ;  and  it  may 
not  (4)  engage  in  war  except  in  self-defence.  Each  one  of 
those  powers  is  inherent  in  any  independent  government. 
For  the  good  of  the  Union  and  themselves  the  people  of 
the  States,  in  ratifying  the  Constitution,  disclaimed  those 
powers  in  favor  of  the  Nation. 


THE   EXECUTIVE  DEPARTMENT 

"There  is  an  idea,  which  is  not  without  its  advocates, 
that  a  vigorous  Executive  is  inconsistent  with  the  genius 
of  republican  government.  The  enlightened  well- wishers 
to  this  species  of  government  must  at  least  hope  that  the 
supposition  is  destitute  of  foundation ;  since  they  can  never 
admit  its  truth,  without  at  the  same  time  admitting  the 
condemnation  of  their  own  principles.  ^Energy  in  the  Ex- 
ecutive is  a  leading  character  in  the  definition  of  good 
government.  )  It  is  essential  to  the  protection  of  the  com- 
munity against  foreign  attacks ;  it  is  not  less  essential  to 
the  steady  administration  of  the  laws;  to  the  protection 
of  property  against  those  irregular  and  high-handed  com- 
binations which  sometimes  interrupt  the  ordinary  course 
of  justice;  to  the  security  of  Hberty  against  the  enter- 
prises and  assaults  of  ambition,  of  faction,  and  of  anarchy. 
.  .  .  There  can  be  no  need,  however,  to  multiply  argu- 
ments or  examples  on  this  head.  A  feeble  Executive  im- 
plies a  feeble  execution  of  the  government.  A  feeble 
execution  is  but  another  phrase  for  a  bad  execution ;  and 
a  government  ill  executed,  whatever  it  may  be  in  theory, 
must  be,  in  practice,  a  bad  government." 

Hamilton,  in  "The  Federalist",  No.   LXXX. 


i' 


ARTICLE  II 

Section  i.  The  executive  Power  shall  be  vested  in 
a  President  of  the  United  States  of  America.  He 
shall  hold  his  Office  during  the  Term  of  four  Years, 
and,  together  with  the  Vice  President,  chosen  for  the 
same  Term,^^ 

^^  In  Woodrow  Wilson's  *' History  of  the  American 
People"  (Vol.  3,  p.  71)  it  is  pointed  out  that  the  laws  of  the 
new  government  were  to  be  imperative  instead  of  advisory : 
"It  was  provided  with  the  Executive  the  Confederation  had 
lacked ;  a  person  in  whose  authority  should  be  concentrated 
the  whole  administrative  force  of  its  government." 

In  Green's  *' History  of  the  English  People"  it  is  stated 
that  Cromwell's  experience  with  the  Long  Parhament 
( 1 640-1 660)  confirmed  his  beHef  in  the  need  of  an  executive 
power,  entirely  apart  from  the  legislature,  "as  a  condition 
of  civil  liberty." 

In  the  examination  of  Article  I,  relating  to  the  Legis- 
lative Department  of  the  government,  it  has  been  seen  that 
the  President  has  great  power  in  that  department  as  well 
as  in  his  own,  in  approving  or  vetoing  bills  passed  by  the 
Senate  and  the  House  of  Representatives.  He  has  an  in- 
fluence in  the  Judicial  Department,  too,  for  he  appoints 
(Note  89)  the  judges ;  but,  of  course,  only  with  the  approval 
of  the  Senate. 

He  is  as  much  a  creation  of  the  Constitution  as  the  Legis- 
lative Department  (Congress)  or  the  Judicial  Department 
(the  Supreme  and  inferior  courts),  and  he  is  therefore  as 
independent  of  both  as  they  are  of  each  other  and  of  him. 


100  Constitution  of  the  United  States 

But  for  misconduct  he  may  be  impeached  by  the  House  and 
tried  by  the  Senate,  the  Chief  Justice  presiding  (Note  17) 
at  the  trial. 

It  was  the  intention  of  the  Founders  of  the  RepubKc 
that  the  Executive  (President)  should  be  a  strong  branch 
of  the  government.  While  the  Colonies  had  had  more  than 
enough  of  a  kingly  executive  wielding  great  and  arbitrary 
power  in  a  stubborn  way,  they  had  later  learned  from  ex- 
perience with  governors  of  the  States  under  the  Articles 
of  Confederation  (i 781-1789)  that  an  executive  with  de- 
fined and  Umited  powers  is  an  essential  to  good  government. 
In  those  days  the  legislature  was  most  feared  as  a  possible 
usurper  of  power.  The  lawless  record  of  the  Long  Parlia- 
ment of  England  was  only  a  century  and  a  half  away,  while 
many  acts  of  later  Parliaments  were  believed  to  be  trans- 
gressions of  both  constitutional  and  natural  rights.  James 
Otis  and  other  colonial  leaders  declared  that  Parliament 
enacted  laws  against  the  Colonies  *' which  neither  God  nor 
man  ever  empowered  them  to  make."  Hence  the  check 
of  the  President's  veto,  and  the  numerous  definite  limi- 
tations upon  the  power  of  Congress. 

When  the  work  of  framing  Article  II  had  been  done  some 
thought  that  a  monarch  had  been  set  up  in  the  President ; 
but,  of  course,  that  was  unreasonable,  as  the  Constitution 
provides  for  his  election  by  popular  vote,  as  he  cannot  raise 
a  dollar  for  an  army  or  for  any  other  purpose,  as  he  cannot 
declare  war,  as  he  is  subject  to  removal  by  impeachment, 
and  as  he  can  do  but  very  Httle  beyond  executing  the  laws 
of  the  Legislative  Department  (Congress).  But  within  his 
sphere  he  is  powerful  and  independent.  ''Abraham  Lin- 
coln," wrote  James  Bryce,  ''wielded  more  authority  than 
any  single  Enghshman  has  done  since  Oliver  Cromwell." 
But  much  of  Lincoln's  war  power,  and  particularly  that  for 
the  use  of  which  he  was  most  criticised,  the  suspension  of 
the  privilege  of  the  writ  of  habeas  corpus,  was  given  to  him 
by  Congress  for  the  term  of  the  war  only.    So  in  191 7  Con^ 


Its  Sources  and  Appticdtwn    '  '       101 

gress  gave  to  President  Wilson  extraordinary  powers  for 
prosecuting  the  war  against  Germany. 

In  the  Constitutional  Convention  many  favored  a  plural 
Executive,  consisting  of  two  or  more  men.  Jefferson,  who 
was  not  in  the  Convention,  favored  a  one-man  Executive, 
pointing  out  that  ^'A  Committee  of  the  States''  provided 
for  in  the  Articles  of  Confederation  to  act  during  recess  of 
Congress  *' quarreled  very  soon,  split  into  two  parties,  aban- 
doned their  post,  and  left  the  Government  without  any 
visible  head  until  the  next  meeting  of  Congress."  In  the 
"FederaHst"  a  single  executive  was  advocated  by  Hamil- 
ton because  of  ^'  decision,^  activity,  secrecy,  and  dispatch" 
and  because  plurality  ''  tends  to  conceal  faults  and 
destroy  responsibility." 

The  length  of  the  term  and  whether  there  should  be  more 
than  one  term  were  much  debated.  A  resolution  was  passed 
by  the  Convention  that  the  President  be  not  eligible  for 
reelection,  Washington  voting  against  it.  Jefferson  wrote 
strongly  for  one  term,  but  he  lived  to  change  his  mind  and 
serve  two  terms.  Later,  he  wrote  that  the  example  of 
four  Presidents  retiring  at  the  end  of  eight  years  would  have 
"the  force  of  precedent  and  usage"  against  any  man  who 
might  seek  a  third  term.  President  Grant  sought  a  third 
term  in  1876,  but  he  was  defeated  in  the  Republican  nomi- 
nating convention.  Theodore  Roosevelt,  who  had  served 
three  years  of  the  second  term  of  McKinley  after  that  Presi- 
dent's death,  and  a  four-year  term  thefeafte^  (1905-1909) 
for  which  he  was  elected,  sought  a  third  (''second  elective" 
it  was  called)  in  191 2.  Failing  to  secure  the  nomination 
in  the  Republican  convention,  he  ran  on  a  third-party 
ticket  and  lost. 

Although  the  Constitutional  Convention  passed  a  reso- 
lution for  one  term,  the  committee  to  which  it  was  finally 
referred  never  reported  it  back.  Terms  were  proposed 
ranging  in  length  from  during^ood  behavior  down  to  three 
years.     The  Convention  fixed  the  term  at  seven  years,  but 


Wk  ConstUution  of  the  United  States 

the  report  came  back  from  the  committee  showing  four 
years,  not  disclosing,  however,  the  reason  for  the  change. 

The  President  of  France  is  elected  for  seven  years  and 
he  may  be  reelected. 

In  Chile  the  term  of  the  President  is  five  years  and  he  is 
not  eHgible  for  reelection.  He  cannot,  without  the  per- 
mission of  Congress,  leave  the  RepubHc  during  his  term  or 
for  one  year  thereafter. 

The  term  of  the  President  of  the  United  States  of  Brazil 
is  six  years,  and  he  is  forbidden  to  leave  the  country  during 
his  incumbency  under  penalty  of  forfeiture  of  office. 

In  the  first  Congress  under  the  new  order  (1789)  con- 
sideration was  given  to  choosing  titles  for  the  President 
and  Vice  President.  ''His  Excellency"  and  "His  High- 
ness" and  other  titles  were  suggested,  but  as  the  House  of 
Representatives  had  already  addressed  him  simply  as  The 
President,  it  was  finally  resolved  to  adhere  to  his  consti- 
tutional title,  "President  of  the  United  States  of  America." 

be  elected,  as  follows  ^^ 

^^  Over  and  over  the  Constitutional  Convention  debated 
the  question  of  how  the  President  should  be  elected.  It 
was  proposed  that  he  be  chosen  by  Congress ;  by  "electors 
chosen  by  the  people  in  election  districts" ;  by  the  gover- 
nors of  the  States ;  by  the  Senate ;  and  by  the  votes  of  all 
the  people.  The  suggestion  that  the  people  could  choose 
a  President  was  described  as  "vicious",  while  Mr.  Wilson 
of  Pennsylvania  stood  stanchly  for  the  popular  vote. 
James  Madison  said  that  "if  it  is  a  fundamental  principle 
of  free  government  that  the  legislative,  executive  and  judi- 
ciary powers  shall  be  separately  exercised,  it  is  equally  so 
that  they  be  independently  exercised";  and  he  dedared 
that  there  is  even  greater  reason  Whv4:he  Executive  should 
be  independent  of  the*  Legislatfe^ranch  thaiKwhy*  the 
Judiciary  should  be.  Although  at  first  the  Convention 
voted  that  Congress  elect  the  President,  it  was,  after  full 


Its  Sources  and  Application  103 

discussion  of  a  question  ^'the  most  difficult  of  all  which  we 
have  had  to  decide",  concluded  to  choose  by  the  electors 
mentioned  in  the  next  paragraph,  probably  following  the 
provision  of  the  Constitution  of  Maryland  for  the  election 
of  State  senators. 

Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  Number  of  Senators  and  Repre- 
sentatives to  which  the  State  may  be  entitled  in  the 
Congress :  ^^ 

7^  This  is  the  ''electoral  vote"  of  a  State.  Those  of  all 
the  States  together  make  the  vote  of  the  so-called  ''electoral 
college."  The  vote  of  a  State  consists  of  one  vote  for  each 
of  the  two  senators  and  one  vote  for  each  representative. 
When  the  number  of  members  in  the  National  House  of 
Representatives  is  changed  by  the  growth  of  population, 
this  necessarily  increases  the  number  of  votes  in  the  "elec- 
toral college."  When  Washington  was  first  elected  (1788) 
there  was  a  total  of  sixty-nine  electoral  votes,  that  being 
the  number  of  senators  and  representatives  of  the  States 
participating,  New  York  having  failed  to  choose  electors 
and  Rhode  Island  and  North  Carolina  not  yet  having  ratified 
the  Constitution.  In  1922  there  were  five  hundred  thirty- 
one  electoral  votes  in  all  the  United  States,  based  on  the 
census  of  1 9 10. 

It  was  the  intention  of  the  Constitutional  Convention 
that  the  electors,  chosen  as  each  State  might*think  the  best 
way,  should  meet  and  vote  their  individual  preferences, 
thus  excluding  the  influence  of  Congress,  and  also  the  in- 
fluence of  the  voters  ai:  large,  who  were-thought  incom- 
petent to  choose  a  President ;  and  that  is  the  way  Wash- 
ington was  elected  twice  and  Adams  once.  But  during 
the  administration  of  Adams  friends  of  Jefferson  in  Con- 
gress held  a  conference  or  caucus  and  announced  him  as 
their  candidate.    This  became  the  settled  method  of  an- 


104  Constitution  of  the  United  States 

nouncement.  Later  the  caucus  was  superseded  by  the  party 
convention,  which  adopted  a  platform  and  nominated  can- 
didates, a  method  which  still  prevails. 

In  the  beginning  some  of  the  States  chose  their  electors 
by  their  legislatures,  some  according  to  districts,  and  some 
otherwise.  Now  they  are  chosen  by  ballot  of  the  whole 
people.  On  the  same  ballot  are  the  names  of  the  presi- 
dential and  vice-presidential  candidates  of  the  party,  for 
whom  the  electors  are  expected  (though  not  obliged  by 
the  Constitution)  to  vote. 

but  no  Senator  or  Representative,  or  Person  hold- 
ing an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

[The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  Ballot  for  two  persons,  of  whom  one  at 
least  shall  not  be  an  Inhabitant  of  the  same  State 
withthemselves.  And  they  shall  make  a  List  of  all 
the~Persdhs"voted  for,  and  of  tjie  Number  of  Votes 
for  each ;  which  List  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  Seat  of  the  Government  of  the 
United  States,  directed  to  the  President  of  the  Sen- 
ate. The  President  of  the  Senate  shall,  in  the  Pres- 
ence of  the  Senate  and  House  of  Representatives, 
open  all  the  Certificates,  and  the  Votes  shall  then  be 
counted.  The  Person  having  the  greatest  Number  of 
Votes  shall  be  the  President,  if  such  Number  be  a.  Ma- 
jority of  the  whole  Number  of  Electors  appointed  ;|  and 
if  there  be  more  than  one  who  have  such  Majbrity, 
and  have  an  equal  Number  of  Votes,  then  the  House 
of  Representatives  shall  immediately  chuse  by  Bajlof" 
one-  of  thenTToFPi^giden  ;  and~ifTlcrPerson  have  a 
Majority,Theirfroiii  the^five  highest  on  the  List  the 
said  House  shall  in  like  Manner  chuse  the  President. 


Its  Sources  and  Application  105 

But  in  chusing  the  President,  the  Votes  shall  be  taken 
by  States,  the  Representation  from  each  State  hav- 
ing one  Vote ;  A  quorum  for  this  Purpose  shall  con- 
sist of  a  Member  or  Members  from  two-thirds  of  the 
States,  and  a  Majority  of  all  the  States  shall  be  nec- 
essary to  a  Choice.  In  every  Case,  after  the  Choice 
of  the  President,  the  Person  having  the  greatest 
Number  of  Votes  of  the  Electors  shall  be  the  Vice 
President.  But  if  there  should  remain  two  or  more 
who  have  equal  Votes,  the  Senate  shall  chuse  from 
them  by  Ballot  the  Vice  President.]  ^^ 

^^This  paragraph  in  brackets  was  superseded  on  September 
25,  1804,  when  the  Twelfth  Amendment  was  promulgated. 
The  paragraph  is  retained  here  for  its  historic  value.  The 
electors  then  voted  for  persons,  not  for  a  President  and  a 
Vice  President.  Of  the  persons  voted  for  they  could  not 
designate  the  one  they  preferred  for  the  chief  office  and  the 
one  for  second  place.  The  candidate  receiving  the  highest 
number  of  votes  became  President.  The  next  highest  num- 
ber made  the  Vice  President  regardless  of  political  belief. 
Thus  all  the  electors  voted  for  George  Washington.  The 
next  number  in  size  voted  for  John  Adams.  That  made 
Washington  President  and  Adams  Vice  President.  By 
that  method  John  Adams  of  the  Federalist  (or  National) 
party  later  (1797)  became  President,  receiving  seventy-one 
electoral  votes,  and  Thomas  Jefferson,  an  intense  anti- 
Federalist,  Vice  President,  sixty-eight  votes  being  the  next 
highest  number.  The  anti-Federalists  were,  in  addition  to 
being  opposed  to  a  strong  National  (as  distinguished  from 
State)  government,  in  favor  of  intimate  relations  with  the 
new  Republic  of  France,  while  the  FederaHsts  declared 
that  all  foreign  alliances  must  be  avoided.  In  his  Farewell 
Address  (September  17, 1796)  Washington  spoke  repeatedly 
and, powerfully  against  implicating  ourselves  in  European 


lOG  Constitution  of  the  United  States 

affairs.  Such  conflict  of  opinion  and  the  consequent  want 
of  harmony  within  the  administration  made  an  amendment 
to  the  Constitution  necessary.  In  the  presidential  election 
of  1800  Thomas  Jefferson  and  Aaron  Burr  received  seventy- 
three  electoral  votes  each.  The  election  therefore  went 
to  the  House  of  Representatives,  in  which,  after  thirty-five 
ballotings,  Jefferson  was  chosen.  That  made  Burr  Vice 
President,  for  '4n  every  Case,  after  the  Choice  of  the 
President,  the  Person  having  the  greatest  Number  of 
Votes  of  the  Electors  shall  be  Vice  President."  The 
changes  made  will  be  considered  in  the  study  of  the  Twelfth 
Amendment  (Note  165). 

The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  Day  on  which  they  shall  give 
their  Votes ;  which  Day  shall  be  the  same  throughout 
the  United  States.^^ 

^^  As  elections  in  different  States  were  held  at  different 
times.  Congress  acted  (1872)  under  this  clause  and  directed 
that  the  electors  be  appointed  in  each  State  "  on  the  Tuesday 
next  after  the  first  Monday  in  November  in  every  fourth 
year";  and  the  electors  are  required  to  ''meet  and  give 
their  votes  on  the  second  Monday  in  January  next  following 
their  appointment  at  such  place  in  each  State  as  the  legis- 
lature of  such  State  shall  direct",  usually  the  capital  being 
by  the  State  legislature  designated  as  the  place. 

No  person  except  a  natural  born  Citizen,  or  a  Citi- 
zen of  the  United  States,  at  the  time  of  the  Adoption 
of  this  Constitution,^^  shall  be  eligible  to  the  Office  of 
President;  neither  shall  any  Person  be  eligible  to 
that  Office  who  shall  not  have  attained  to  the  Age  of 
thirty-five  Years,  and  been  fourteen  Years  a  Resi- 
dent within  the  United  States. 

^^  Many  of  foreign  birth  who  had  helped  to  create  the 
United  States  would  have  been  rendered  inelia^ible  hs^ 


Its  Sources  and  Application  107 

not  the  provision  been  inserted  making  eligible  those  of 
foreign  birth  who  at  the  time  of  the  adoption  of  the 
Constitution  were  citizens  of  the  United  States.  The 
lapse  of  time  long  since  removed  that  class  and  left  the 
excepting  clause  the  mere  record  of  an  interesting  historic 
fact. 

Seven  of  the  signers  of  the  Constitution  were  foreign 
born:  James  Wilson,  Robert  Morris  and  Thomas  Fitz- 
simons  of  Pennsylvania,  Alexander  Hamilton  of  New  York, 
William  Paterson  of  New  Jersey,  James  McHenry  of 
Maryland,  and  Pierce  Butler  of  South  Carolina. 

Some  members  of  the  Constitutional  Convention  argued 
for  a  financial  qualification  also.  It  was  suggested  that 
the  President  should  be  worth  in  property  at  least  $100,000. 
The  proposal  was  rejected.  The  first  President  was  a  man 
of  large  means.  Most  of  the  Presidents  have  been  poor 
in  property. 

It  is  an  interesting  fact  that  the  one-House  Congress 
sitting  under  the  Articles  of  Confederation  passed,  while 
the  Constitutional  Convention  was  in  session  (July  13, 
1787),  ^^an  ordinance  for  the  government  of  the  territory 
northwest  of  the  river  Ohio"  (now  C|iio,  Indiana,  Illinois, 
Michigan,  and  Wisconsin)  in  which  it  was  provided  that 
the  governor  to  be  appointed  by  Congress  should,  besides 
being  a  resident  of  the  district,  *'have  a  freehold  estate 
therein  in  500  acres  of  land  while  in  the  exercise  of  his  office." 
The  judges  of  the  court  created  were  each  required  to  own 
a  Hke  area.  The  belief  then  was  common  that  ownership 
of  property  added  to  stability  of  character  and  citizenship. 

In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  discharge 
the  Powers  and  Duties  of  the  said  Office,  the  same 
shall  devolve  on  the  Vice  President,  and  the  Congress 
may  by  Law  provide  for  the^  Case  of  Removal,  Death, 
Resignation  or  Inability,  both  of  the  President  and 


108  Constitution  of  the  United  States 

Vice  President,  declaring  what  Officer  shall  then  act 
as  President,  and  such  Officer  shall  act  accordingly, 
until  the  Disability  be  removed,  or  a  President  shall 
be  elected.^^ 

^^  Congress  has  made  no  provision,  evidently  believing 
it  unnecessary  under  the  foregoing  language,  for  the  per- 
formance of  the  duties  of  the  President  in  time  of  his  in- 
ability alone. 

For  nearly  three  months  after  being  shot  (July  2,  1881) 
President  Garfield  was  unable  to  perform  the  duties  of  his 
place,  but  Vice  President  Arthur  did  not  because  of  that 
"inabihty  "  assume  *'  the  powers  or  duties  of  the  said  office.'^ 
After  the  President's  death  (September  19, 1881)  Mr.  Arthur 
succeeded  to  the  post.  In  1919-1920  President  Wilson's 
sickness  caused  such  "inabiHty"  for  several  months  that 
not  even  Cabinet  officers  or  represeiftatives  of  foreign  na- 
tions were  permitted  to  see  him.  The  language  of  the  Con- 
stitution clearly  expresses  the  intent  that  in  case  of  such 
inabihty,  even  when  temporary,  the  Vice  President  shall 
discharge  the  duties  of  the  office.  The  Supreme  Court  of 
New  Hampshire  held  under  a  similar  provision  in  the  con- 
stitution of  that  State  that  the  governor's  office  was 
*' vacant"  when  his  temporary  inabihty  from  sickness  and 
the  needs  of  pubHc  service  required  the  duties  to  be  per- 
formed by  a  substitute,  and  that  in  such  circumstances  the 
President  of  the  State  Senate  could  be  compelled  by  writ 
of  mandamus  from  court  to  assume  and  discharge  the 
duties.  In  1886,  five  years  after  the  death  of  President 
Garfield  and  the  succession  to  office  of  Vice  President 
Arthur,  it  was  enacted  by  Congress  that  "in  case  of  the 
removal,  death,  resignation  or  inabihty  of  both  the  Presi- 
dent and  Vice  President",  the  Secretary  of  State  shall  dis- 
charge the  duties  of  the  President,  if  he  be  under  no  dis- 
abihty.  Next  in  order  come  the  Secretary  of  the  Treasurj" 
the  Secretary  of  War,  the  Attorney- General,  the  Postmaster 


Its  Sources  and  Application  109 

General,  the  Secretary  of  the  Navy,  and  the  Secretary  of 
the  Interior.  Should  Congress  not  be  sitting  at  the  time 
of  such  succession  it  must  be  called  in  extraordinary  session 
by  a  notice  of  twenty  days. 

^^The  Cpnsftitution  of  the  United  States  of  Brazil  (1890) 
is  more  clear  than  ours  and  provides  that  the  Vice  President 
shall  take  the  place  of  the  President  ^'in  case  oi' temporary 
disabiUty  and  succeed  him  in  case  of  vacancy." 

The  President  shall,  at  stated  Times,  receive  for 
his  Services,  a  Compensation,  which  shall  neither  be 
encreased  nor  dimimshed  during  the  Period  for  which 
he  shall  have  been  elected,  ^^ 

^2  The  first  Congress,  by  an  Act  of  September  24,  1789, 
fixed  the  salary  of  the  President  at  $25,000  a  year. 

The  Act  of  March  3,  1873,  doubled  President  Grant's 
salary  the  day  before  his  second  term  began  and  increased 
those  of  the  Vice  President,  the  members  of  the  Cabinet, 
the  Justices  of  the  Supreme  Court,  and  the  members  of 
Congress  themselves.  It  was  made  retroactive  as  to  Con- 
gressmen. This  was  contrary  to  popular  opinion  and  also 
to  the  practice  of  legislators  in  the  States  not  to  increase 
their  compensation  during  the  term  for  which  they  were 
elected.  Owing  to  public  disapproval,  one  of  the  first  steps 
of  the  next  Congress  was  to  reduce  (January  20,  1874)  all 
of  the  advances  of  salaries  except  those  of  the  President 
and  the  Justices  of  the  Supreme  Court,  the  Constitution 
forbidding  (Note  98)  Congress  to  diminish  those.  In  1909 
the  salary  of  the  President  was  advanced  to  $75,000,  with 
an  allowance  from  time  to  time  for  traveling  expenses  such 
as  Congress  may  deem  necessary  and  not  exceeding  $25,000 
a  year. 

The  Australian  Governor  General,  who  is  appointed  by 
the  sovereign  of  England  instead  of  being  elected,  receives 
q  salary  of  $50,000  a  year. 

See  Note  33  for  advances  oT  Congressional  salaries. 


110  Constitution  of  the  United  States 

and  he  shall  not  receive  within  that  Period  any  other 
Emolument  from  the  United  States,  or  any  of  them.^^ 

^^  Of  the  provisions  of  this  paragraph  Alexander  Hamilton 
wrote  in  the  "Federalist"  (No.  LXXIII) :  "They  [Con- 
gress] can  neither  weaken  his  fortitude  by  operating  upon 
his  necessities,  nor  corrupt  his  integrity  by  appealing  to 
his  avarice.  .  .  .  Nor  will  he  be  at  liberty  to  receive  any 
other  emolument  than  that  which  may  have  been  deter- 
mined by  the  first  act.  He  can,  of  course,  have  no  pecuni- 
ary inducement  to  renounce  or  desert  the  independence 
intended  for  him  by  the  Constitution." 

Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  ^^  or  Affirmation :  —  "I 
do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  Office  of  President  of  the  United  States, 
and  will  to  the  best  of  my  Ability,  preserve,  protect 
and  defend  the  Constitution  of  the  United  States." 

^  The  oath  is  usually  administered  at  the  Capitol  by 
the  Chief  Justice  of  the  United  States  "before"  the  Presi- 
sident^lect  takes  office  on  March  4.  But  it  may  be  taken 
elsewhere  and  before  any  officer  empowered  by  law  to  ad- 
minister oaths.  President  Grant's  second  term  expired  on 
Sunday,  March  4,  1877,  and  Rutherford  B.  Hayes  took 
the  oath  at  the  White  House  on  Saturday  and  again  at  the 
Capitol  on  Monday.  Upon  the  death  of  President  Gar- 
field (September  19, 1881)  the  oath  was  taken  by  Vice  Pres- 
ident Arthur  in  New  York  City  and  later  he  took  it  again 
in  Washington. 

Section  2.  The  President  shall  be  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  Militia  of  the  several  States,  when  called 
into  the  actual  Service  of  the  United  States ;  ^^ 

^^  This  is  a  constitutional  right  which  Congress  has  no 
power  to  diminish.     In  the  Convention  it  was  proposed 


Its  Sources  and  Application  111 

that  he  be  not  permitted  to  head  an  army  in  the  field,  but 
the  proposal  was  rejected.  In  practice,  however,  no  Presi- 
dent has  led  an  army  or  commanded  a  navy.  The  Secretary 
of  War  and  the  Secretary  of  the  Navy  carry  out  the  wishes 
of  the  commander  in  chief.  The  experience  of  General 
Washington  during  the  Revolution  with  the  dilatory 
methods  of  Congress  probably  brought  the  Convention  to 
the  idea  that  there  should  be  no  divided  authority  when 
troops  are  ''called  into  the  actual  service  of  the  United 
States."  Some  of  the  early  Constitutions  of  the  States  made 
the  governors  commanders;  and  the  ordinance  creating 
Northwest  Territory  (1787)  made  the  governor  ''com-* 
mander  in  chief  of  the  militia",  with  authority  to  ''appoint 
and  commission  ofiicers  in  the  same  below  the  rank  of  gen- 
eral officers." 

Formerly  some  of  the  States  thought  that  they  should 
determine  whether  the  militia  should  be  sent  to  the  service 
of  the  Nation,  but  the  Supreme  Court  of  the  United  States 
held  that  "the  authority  to  decide  whether  the  exigency 
has  arisen  belongs  exclusively  to  the  President  and  his  de- 
cision is  conclusive  upon  all  other  persons."  If  many  States 
were  to  come  to  many  conclusions  upon  such  a  subject  the 
Nation  might  in  the  meanwhile  be  destroyed. 

In  time  of  war  much  of  the  power  exercised  by  the  Pres- 
ident is  delegated  to  him  by  Congress  for  the  time  being. 
During  the  Civil  War  Congress  so  aided  the  President  that 
it  was  described  as  "a  giant  committee  of  ways  and  means." 
In  1862  it  authorized  President  Lincoln  to  take  possession 
of  railroads  when  necessary  for  public  safety.  In  the  World 
War  Congress  authorized  the  President  to  take  over  and 
operate  the  railroads  as  an  instrumentaHty  of  war,  which  he 
did.  It  passed  many  acts  giving  him  extraordinary  powers, 
such  as  the  Conservation  of  Food  Act,  the  War  Finance 
Corporation  Act,  the  Trading  with  the  Enemy  Act,  and 
many  others.  Such  authority  expires  either  by  a  time  limit 
in  the  act  itself  or  by  subsequent  repeal  by  Congress. 


112  Constitution  of  the  United  States 

he  may  require  the  Opinion,  in  writing,  of  the  princi- 
pal Officer  in  each  of  the  executive  Departments, 
upon  any  subject  relating  to  the  Duties  of  their  re- 
spective Offices,  ^^ 

^^  The  ''principal  officer"  is  a  member  of  the  President's 
Cabinet.  At  least  twice  the  Constitutional  Convention 
refused  to  hamper  the  President  by  an  advisory  council 
which  might  influence  his  conclusions.  In  Colonial  times 
the  royal  governor  had  a  council  with  a  considerable  power. 
But  in  the  course  of  events  there  has  grown  up  a  cabinet 
somewhat  resembhng  the  council  which  the  Convention 
rejected.  However,  it  is  not  a  Constitutional  body,  and 
the  President  is  in  no  way  bound  by  the  opinion  of  his  cab- 
inet, nor  is  he  obliged  to  consult  it  at  all.  Some  Presi- 
dents, knowing  that  the  majority  of  the  members  of  the 
cabinet  were  not  in  sympathy  with  a  particular  policy, 
have  gone  forward  without  consulting  them.  Others  have 
Hstened  to  suggestions  and  then  acted  at  pleasure.  Jeffer- 
son called  for  a  vote  in  cabinet  meetings,  his  vote  counting 
one  with  the  others.  But  he  beHeved  that  he  had  the  right 
to  independent  action.  Lincoln  wrote  the  Emancipation 
Proclamation  without  consulting  his  cabinet ;  but  he  read 
it  during  a  meeting  for  suggestions  and  amendments. 

The  first  "principal  officer"  created  under  this  clause 
was  the  Secretary  of  State,  brought  into  being  by  an  act 
of  the  first  Congress,  July  27,  1789.  His  department  was 
then  called  the  Department  of  Foreign  Affairs.  Next  came 
the  Secretary  of  War  (August  7,  1789),  the  Secretary  of  the 
Treasury  (September  2,  1789),  the  Attorney-General  (Sep- 
tember 24,  1789),  the  Postmaster  General  (May  8,  1794), 
the  Secretary  of  the  Navy  (April  30,  1798),  the  Secretary 
of  the  Interior  (March  3, 1849),  the  Secretary  of  Agriculture 
(May  15,  1862),  the  Secretary  of  Commerce  (February  14, 
1903),  and  the  Secretary  of  Labor  (March  4,  1913). 

In  Chile  there  is  a  Council  of  State  resembhng  our  Pres- 


Its  Sources  and  Application  113 

ident's  cabinet,  made  up  of  three  persons  chosen  by  the 
Senate,  three  by  the  House  of  Deputies,  and  five  by  the 
President.  Its  duties  are  advisory,  except  in  some  cases 
in  which  the  Constitution  requires  submission  to  the  Coun- 
cil.    Thus  to  a  degree  the  President  is  restricted. 

In  Canada,  in  Australia,  and  in  South  Africa  there  is 
a  council  chosen  by  the  Governor  General  and  holding 
place  at  his  pleasure. 

and  he  shall  have  Power  to  grant  Reprieves  and  Par- 
dons for  Offences  against  the  United  States,  except 
in  Cases  of  Impeachment.^^ 

^^  With  one  exception  the  power  to  pardon  is  absolute. 
The  judgment  of  the  United  States  Senate  in  an  impeach- 
ment trial  (Note  25)  is  beyond  the  reach  of  executive  clem- 
ency. Otherwise  an  appointee  of  the  President  who  might 
be  convicted  in  an  impeachment  trial  could  be  pardoned 
and  reappointed  to  the  office  for  which  he  had  been  adjudged 
unfit.  Such  was  the  method  of  the  sovereign  of  England 
in  protecting  his  favorites  from  punishment.  In  the  Act 
of  Settlement  (1701)  providing  for  a  successor  to  Queen 
Anne,  the  Parliament  declared  that  no  pardon  by  the  King 
could  be  used  to  exculpate  one  who  had  been  impeached 
^'by  the  Commons  in  Parliament." 

On  Christmas  day,  1868,  President  Johnson  issued  a  gen- 
eral proclamation  granting  full  pardon  "unconditionally 
and  without  reservation"  to  those  who  had  acted  against 
the  Union  in  the  Civil  War.  The  judiciary  committee  of 
the  Senate  questioned  his  power,  but  the  Senate  took  no 
action.  The  Supreme  Court  has  said  that  the  President's 
pardoning  power  is  beyond  control  or  Hmitation  by  Con- 
gress. 

He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided 
two-thirds  of  the  Senator^  present  concur ;  ^^ 


114  Constitution  of  the  United  States 

^^  A  treaty  is  a  written  contract  between  two  govern- 
ments respecting  matters  of  mutual  welfare,  such  as  peace, 
the  acquisition  of  territory,  the  defining  of  boundaries, 
the  needs  of  trade,  the  rights  of  citizenship,  the  ownership 
or  inheritance  of  property,  the  benefits  of  copyrights  and 
patents,  or  any  other  subject. 

During  the  time  of  the  Continental  Congress  (i 774-1 781) 
many  treaties  were  made  by  it  on  behalf  of  the  States  by 
name.  The  Congress  was  then  the  only  governmental 
authority.  While  the  Articles  of  Confederation  were  in 
effect  (i  781-1789)  the  one-House  Congress,  even  after  cre- 
ating a  Department  of  Foreign  Affairs  (1781),  retained  su- 
pervisory power  over  treaties  and  some  other  international 
matters ;  and  it  was  by  this  method  that  the  Treaty  of  Paris 
(1783),  by  which  England  recognized  the  independence 
of  the  United  States,  was  negotiated.  Twelve  other 
treaties  were  entered  into  by  Congress.  But  when  the 
present  Constitution  was  framed,  creating  a  President  and 
a  Congress  of  two  Houses,  it  was  determined  to  let  the 
President,  the  executive  head  of  the  Nation,  negotiate 
treaties  with  other  governments  and  to  empower  the  Senate 
to  ratify  or  reject  them. 

In  the  Constitutional  Convention  a  committee's  report 
gave  to  the  Senate  the  full  power  to  make  treaties.  One 
delegate  favored  giving,  the  power  to  the  two  Houses  of 
Congress.  Probably  as  a  compromise  the  method  stated 
in  the  Constitution  was  adopted.  The  subject  received 
no  more  than  ordinary  consideration.  It  was  pointed  out 
in  the  *' Federalist"  by  Alexander  Hamilton  that  treaty- 
making  is  neither  legislative  nor  executive,  but  that  it  ap- 
peared that  the  executive  is  ^'the  more  fit  agent  in  those 
transactions,  while  the  vast  importance  of  the  trust  and 
the  operation  of  the  treaties  as  laws  plead  strongly  for  the 
participation  of  the  whole  or  a  portion  of  the  legislative 
body  in  the  office  of  making  them."  The  Senate  must 
finally  approve  a  treaty  by  a  two-thirds  majority  before  it 


Its  Sources  and  Application  115 

can  become  effective.  The  reason  for  this  given  by  Alex- 
ander Hamilton  was  that  a  man  raised  from  humble  station 
to  the  height  and  power  of  the  Presidency  might  be  unable 
to  withstand  the  temptation  of  avarice  or  ambition  by  aid- 
ing a  foreign  power  to  the  detriment  of  the  United  States. 

Once  a  treaty  is  made,  it  requires  both  branches  of  Con- 
gress to  abrogate  it ;  that  is,  the  President  and  the  Senate 
cannot  undo  their  work. 

A  precedent  for  thus  abrogating  a  treaty  made  by  the 
President  and  approved  by  the  Senate  may  be  found  as  far 
back  as  July  7,  1789,  when  Congress  passed  "An  act  to  de- 
clare the  treaties  heretofore  concluded  with  France  no  longer 
obligatory  on  the  United  States"  because  they  "have  been 
repeatedly  violated  on  the  part  of  the  French  government." 
As  a  law  of  Congress  may  thus  supersede  a  treaty,  so  a 
treaty  may  supplant  an  act  of  Congress,  the  latest  expres- 
sion of  the  National  will  being  controlling. 

While  in  this  clause  the  Constitution  names  the  President 
and  the  Senate  as  the  makers  of  a  treaty,  other  provisions 
sometimes  require  the  concurrence  of  the  House  of  Repre- 
sentatives; for  as  all  money  bills  must  originate  in  that 
House  (Note  37),  it  may  refuse  to  provide  the  means  for 
effectuating  the  treaty.  Of  course,  many  treaties  need  no 
such  aid  from  the  House ;  but  the  House  may  constitu- 
tionally render  null  a  treaty  in  which  it  disbelieves  and 
which  cannot  be  effectual  without  the  expenditure  of  money. 

The  Reverdy  Johnson-Lord  Clarendon  Treaty  of  1869, 
which  attempted  to  settle  all  differences  with  England  from 
1853  down,  was  rejected  by  the  Senate  by  a  vote  of  54  to  i, 
largely  because  it  was  felt  that  Johnson  should  have  exacted 
an  apology  for  acts  done  by  England  during  the  Civil  War 
in  claimed  violation  of  neutraUty. 

On  February  16,  1893,  just  before  the  expiration  of  his 
term.  President  Harrison  sent  a  treaty  to  the  Senate  for 
the  annexation  of  Hawaii*  When  President  Cleveland 
took  office  he  withdrew  the  treaty,  as  he  questioned  the 


116  Constitution  of  the  United  States 

validity  of  the  revolutionary  provisional  government  which 
had  been  set  up  under  the  protection  of  marines  from  a  man- 
of-war  of  the  United  States  lying  in  the  harbor  of  Honolulu. 

In  Cleveland's  administration  (1897)  the  Senate  decHned 
to  approve  a  treaty  made  with  England  because  it  proposed 
to  submit  American  *  interests  in  all  cases  to  the  decisions 
of  an  outside  tribunal."  The  treaty  was  drawn  after  a 
very  serious  dispute  with  England  regarding  the  boundary 
between  British  Guiana  and  Venezuela,  our  government 
interposing  under  the  Monroe  Doctrine  for  the  protection 
of  the  last-named  State. 

President  Washington  consulted  with  the  Senate  re- 
specting treaties  which  he  intended  to  negotiate.  The  prac- 
tice has  not  been  generally  followed  by  his  successors,  though 
from  time  to  time  it  has  been  adopted.  In  1846,  in  the 
midst  of  a  threatening  controversy  with  Great  Britain  re- 
specting the  northwest  boundary  of  the  United  States  from 
the  Rocky  Mountains  to  the  Pacific  Coast,  which  negotia- 
tions in  1818,  in  1824,  in  1826,  and  in  1844  had  failed  to 
settle,  President  Polk  transmitted  to  the  Senate  a  proposal 
"of  Her  Britannic  Majesty  for  the  adjustment  of  the  Oregon 
question"  and  asked  for  its  advice.  Referring  to  Wash- 
ington's practice  as  ''rarely  resorted  to  in  later  times",  he 
said  that  it  ''was,  in  my  judgment,  eminently  wise  and 
may  on  occasion  of  great  importance  be  properly  revived.'^ 

These  were  his  reasons : 

*'The  Senate  are  a  branch  of  the  treaty-making  power, 
and  by  consulting  them  in  advance  of  his  own  action  upon 
important  measures  of  foreign  policy  which  may  ultimately 
come  before  them  for  their  consideration,  the  President 
secures  harmony  of  action  between  that  body  and  himself. 
The  Senate  are,  moreover,  a  branch  of  the  war-making 
power,  and  it  may  be  eminently  proper  for  the  Executive 
to  take  the  opinion  and  advice  of  that  body  in  advance 
upon  any  great  question  which  may  involve  in  its  decision 
the  issue  of  neace  or  war." 


Its  Sources  and  Application  117 

President  Polk  concluded  the  message  by  saying  that  if 
the  majority  of  the  Senate  necessary  to  ratify  (two  thirds) 
should  *' advise  the  acceptance  of  this  proposition  ...  I 
shall  conform  my  action  to  their  advice."  But  he  said  that 
should  the  Senate  by  a  two-thirds  vote  decline  to  give  ad- 
vice or  express  an  opinion,  then  he  would  "consider  it  my 
duty  to  reject  the  offer."  On  June  12, 1846,  two  days  later, 
the  Senate  passed  a  resolution  that  "the  President  of  the 
United  States  be,  and  he  is  hereby,  advised  to  accept  the 
proposal  of  the  British  Government  ...  for  a  convention 
to  settle  boundaries." 

After  the  Spanish  War  President  McKinley  sent  five  sena- 
tors to  the  peace  conference  at  Paris.  A  resolution  of  dis- 
approval was  introduced  in  the  Senate,  but  it  was  not  passed. 
One  objection  was  that  such  a  course  would  tend  to  give 
the  President  an  undue  influence  over  the  Senate,  probably 
because  senators  serving  with  the  President  in  the  nego- 
tiation of  a  treaty  might  be  less  inclined  to  independent 
judgment  when  the  treaty  should  come  up  in  the  Senate 
for  ratification. 

At  the  close  of  the  War  of  181 2  with  England  two  mem- 
bers of  Congress  were  appointed  by  President  Madison  to 
attend  the  peace  conference  at  Ghent,  the  Speaker  of 
the  House,  Henry  Clay,  and  Senator  James  A.  Bayard  of 
Delaware.  Believing  that  they  could  not  serve  in  two  ca- 
pacities, they  resigned  from  Congress. 

President  Harding  appointed  two  senators  as  delegates 
to  the  Washington  Conference  (November  12, 1921-Febru- 
ary  6,  1922),  in  which  nine  nations  drafted  treaties,  some 
for  the  reduction  of  armaments  and  others  respecting  the 
general  peace  of  the  world. 

The  Senate  may  (i)  approve,  (2)  reject,  (3)  approve  with 
amendments,  (4)  approve  upon  condition  that  specified 
changes  will  be  made,  and  (5)  approve  with  reservations 
or  interpretations.  In  soma  instances  it  has  failed  to  act 
at  all.     In  1795  the  Senate  approved  the  Jay  Treaty  with 


118  Constitution  of  the  United  States 

Great  Britain  ''on  condition"  that  certain  changes  be  made 
to  our  commercial  advantage;  and  the  British  Govern- 
ment accepted  the  conditions. 

The  rejection  of  a  treaty  by  the  Senate  **can  be  the  sub- 
ject of  no  complaint",  said  our  State  Department  to  Great 
Britain  when  the  treaty  of  1869  regarding  the  Alabama 
Claims  was  not  approved,  ''and  can  give  no  occasion  for 
dissatisfaction  or  criticism."  In  1804  Secretary  of  State 
Madison  had  occasion  to  give  Spain  a  like  hint.  "When 
peculiarities  of  this  sort  in  the  structure  of  a  government 
are  sufficiently  known  to  other  governments",  said  he, 
"they  have  no  right  to  take  exception  at  the  inevitable 
effect  of  them." 

Many  treaties  have  been  approved  by  the  Senate  and 
many  disapproved.  Treaties  suggesting  any  modification 
of  or  departure  from  our  Constitutional  system  have  been 
rejected.  Thus  in  President  Roosevelt's  administration 
a  number  of  arbitration  treaties  negotiated  by  Secretary 
of  State  Hay  with  various  coimtries  provided  for  referring 
to  The  Hague  Tribunal^  questions  of  a  Constitutional 
nature  and  also  disputes  respecting  the  interpretation  of 
treaties  themselves.  As  the  reference  to  the  Tribunal  would 
be  by  the  President,  the  Senate  would  be  shorn,  it  believed, 

1  The  Hague  Tribunal  arose  out  of  conferences  in  1899  ^-iid  1907  held  at 
the  capital  of  Holland  upon  the  suggestion  of  Nicholas  H  of  Russia,  who 
recommended  an  "understanding  not  to  increase  for  a  fixed  period  the 
present  effectives  of  the  armed  military  and  naval  forces  and  at  the  same 
time  not  to  increase  the  budgets  pertaining  thereto,  and  a  preliminary  ex- 
amination of  the  means  by  which  even  a  reduction  may  be  effected  in  the 
future  in  the  forces  and  budgets  above  mentioned."  The  first  conference 
was  attended  by  representatives  of  twenty-six  nations.  Forty-four  nations 
were  represented  in  the  conference  of  1907.  Owing  to  the  opposition  of 
Germany,  the  subject  of  excessive  armaments  was  abandoned.  But  many 
plans  for  the  improvement  of  international  practices  were  put  in  motion. 
The  first  question  to  be  decided  by  the  Hague  Tribunal  was  submitted  by 
the  United  States,  relating  to  a  fund  owing  to  Californians  by  Mexico. 
Many  questions  of  the  kind  formerly  settled  by  war  have  been  disposed  of 
at  the  Hague. 


Its  Sources  and  Application  119 

of  part  of  its  Constitutional  duties  in  treaty-making  matters. 
When  the  Senate  amended  the  treaties  so  as  to  retain  what 
it  conceived  to  be  its  Constitutional  jurisdiction  of  the  sub- 
ject, the  President  refused  to  go  further. 

The  most  notable  disagreement  of  this  kind  arose  in  19 19, 
when  the  treaty  negotiated  by  President  Wilson  at  Paris 
(June  28,  19 1 9)  closing  the  World  War  and  constructing 
a  League  of  Nations  was  laid  before  the  Senate.  It  was 
believed  by  the  Senate  that  the  proposals  to  submit  to  an 
international  tribunal  certain  questions  would  change  our 
Constitutional  form  of  government  —  would  require  the 
United  States  to  go  to  war  without  a  declaration  by  Con- 
gress (Note  55) ;  would  commit  the  Nation  to  the  expendi- 
ture of  money  which  Congress  might  not  wish  to  appro- 
priate (Note  37) ;  and  would  turn  over  to  the  balloting  of 
nations  the  disposition  of  many  of  our  most  important  Con- 
stitutional affairs.  The  Senate  therefore  proposed  to  ratify 
the  treaty  *'with  reservations  and  understandings." 

The  Senate  reserved  to  Congress  the  right  to  withdraw 
from  the  League  and  to  be  the  sole  judge  as  to  whether  its 
obligations  had  been  fulfilled ;  declined  to  assume  any  obli- 
gation to  preserve  the  territorial  integrity  or  political  in- 
dependence of  any  other  country,  or  to  use  the  military  or 
naval  forces  except  as  Congress  might  desire  to  do ;  declined 
to  accept  any  mandate  or  guardianship  over  another  nation 
except  as  Congress  might  determine ;  reserved  to  the  Gov- 
ernment of  the  United  States  exclusively  the  determination 
of  domestic  and  political  questions ;  declined  to  submit  to 
arbitration  or  to  the  Council  of  the  League  of  Nations  the 
''long  established  policy  commonly  known  as  the  Monroe 
Doctrine" ;  withheld  its  assent  to  the  article  of  the  treaty 
giving  the  Chinese  province  of  Shantung  to  Japan;  and 
declined  to  be  limited  in  armament  except  as  Congress 
might  direct.  Some  other  reservations  were  made.  When 
the  treaty  with  the  reservations  came  to  final  vote  in  the 
Senate  on  March  19,  1920,  it  received  forty-nine  yeas  and 


120  Constitution  of  the  United  States 

thirty-five  nays,  or  seven  votes  fewer  than  the  necessary 
two  thirds  to  make  a  ratification.  President  Wilson  de- 
clined to  offer  any  concessions  to  the  views  of  the  Senate. 

and  he  shall  nominate,  and  by  and  with  the  Advice 
and  Consent  of  the  Senate,  shall  appoint  Ambassadors, 
other  public  Ministers  and  Consuls,  Judges  of  the 
supreme  Court,  and  all  other  Oflacers  of  the  United 
States,  whose  Appointments  are  not  herein  otherwise 
provided  for,  and  which  shall  be  established  by  Law :  ^^ 
but  the  Congress  may  by  Law  vest  the  Appointment 
of  such  inferior  Officers,  as  they  think  proper,  in  the 
President  alone,  in  the  Courts  of  Law,  or  in  the  Heads 
of  Departments. 

^^  In  the  Constitutional  Convention  serious  objection 
was  taken  to  this  provision,  as  the  President  might  refuse 
his  assent  to  necessary  measures  of  Congress  until  appoint- 
ments objectionable  to  the  Senate  had  been  confirmed. 
It  was  argued  that  this  authority  to  appoint  would  invest 
him  with  power  leading  toward  monarchy.  Benjamin 
Franklin  was  of  this  behef.  However,  in  practice  the  plan 
has  worked  very  well.  It  is  probably  true  that  some  Presi- 
dents have  to  some  extent  used  their  appointing  power  to 
influence  Congress,  refusing  to  fill  offices  within  the  control- 
of  members  until  a  bill  favored  by  him  had  been  passed. 
On  the  other  hand,  it  is  beheved  that  the  Senate  has  some- 
times used  its  power  to  approve  appointments  to  influence 
the  President  to  conform  to  its  wishes.  In  a  message  dated 
March  i,  1886,  President  Cleveland  declined  to  inform 
the  Senate  why  he  had  removed  a  United  States  attorney 
from  office  without  its  consent,  declaring  that  it  had  no 
Constitutional  authority  in  the  matter;  and  he  referred 
to  *^the  threat  proposed  in  the  resolutions  now  before  the 
Senate  that  no  confirmation  will  be  made  unless  the  demands 
of  that  body  be  complied  with  "  as  insufficient  to  deter  him 


Its  Sources  and  Application  121 


Late  faned 


from  his  duty  to  maintain  the  Chief  Magistracy- 
paired  in  all  its  dignity  and  vigor."      ^ 

For  removing,  in  disregard  of  the  Tenure  of  0\ 
Edward  M.  Stanton,  a  hostile  Secretary  of  War,  Pi 
Johnson  was  impeached  by  the  House,  but  the  Senate 
to  convict.  The  Tenure  of  Office  Act  was  repealed  on 
March  3,  1887,  a  year  after  the  spirited  message  of  Presi- 
dent Cleveland  just  before  mentioned,  in  which  he  spoke 
of  the  Act  as  by  a  Congress  "overwhelmingly  and  bitterly 
opposed  politically  to  the  President"  and  "determined  upon 
the  subjugation  of  the  Executive  to  legislative  will."  He 
considered  the  passage  of  the  Act  as  an  admission  by  Con- 
gress that  it  had  no  Constitutional  basis  for  its  claim. 

The  first  appointment  to  the  cabinet  to  be  denied  con- 
firmation by  the  Senate  was  that  of  Roger  B.  Taney  (later 
Chief  Justice  of  the  United  States)  to  the  Secretaryship 
of  the  Treasury  in  1834.  He  had  helped  Jackson  undo 
the  United  States  Bank. 

The  President  shall  have  Power  to  fill  up  all  Vacan- 
cies that  may  happen  during  the  Recess  of  the  Sen- 
ate, by  granting  Commissions  which  shall  expire  at 
the  End  of  their  next  Session. ^° 

^"Like  many  another  clause  of  the  Constitution,  this 
one  was  copied  from  a  State.  The  Constitution  of  North 
Carolina  had  such  a  provision.  When  the  Senate  is  not 
in  session  to  confirm  appointments,  the  President  may  never- 
theless meet  the  needs  of  the  public  service.  But  should  the 
Senate  during  its  next  session  not  confirm  a  recess  appoint- 
ment (as  it  is  called)  the  appointment  will  expire  with  that 
session.  This  is  to  prevent  the  President  from  building 
up  the  executive  power  by  putting  in  office  men  not  deemed 
suitable  by  the  Senate. 

Section  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  ^^ 


122  Constitution  of  the  United  States 

|k®^  This  mandate  has  been  carried  out  by  the  annual  and 
^^pecial  messages  of  the  Presidents,  the  annual  message 
^^k^ppening  of  Congress  in  December  and  the  special 
i^^Plle  when  a  matter  of  unusual  importance  comes  up, 
sucn  as  a  disagreement  with  a  foreign  government,  or  a 
disaster  calling  for  the  granting  of  relief,  or  the  conservation 
of  the  forests  and  minerals,  and  the  Hke.  Washington  and 
Adams  delivered  their  messages  orally.  Jefferson,  who  was 
not  a  ready  speaker,  asked  leave  to  submit  his  in  writing, 
saying  that  Congress  might  then  consider  a  message  at  its 
convenience.  The  written  message  remained  the  practice 
until  1913,  when  President  Wilson  revived  the  oral  address 
to  Congress. 

Because  the  President  is  required  by  the  Constitution 
to  give  information  to  Congress  from  time  to  time,  Congress 
from  the  beginning  has  claimed,  conversely,  the  right  to 
ask-the  President  for  information.  Washington  was  called 
upon  by  the  House  of  Representatives  for  papers  regarding 
the  defeat  of  General  St.  Clair's  forces  in  1791  by  the  Miami 
Indians.  After  a  three-day  consideration  of  the  question 
by  Washington  and  his  cabinet,  which  was  regarded  as  of 
the  greatest  importance  as  a  precedent,  it  was  decided  that 
the  House  had  a  right  to  copies  of  the  papers.  In  1909 
President  Roosevelt  refused  to  permit  the  Attorney-General 
to  make  answer  to  a  resolution  of  the  Senate  asking  why 
no  legal  proceedings  had  been  begun  against  a  corporation 
named  for  violation  of  the  Sherman  Anti-Trust  law. 

A  clause  similar  to  this  was  in  the  Constitution  of  New 
York  of  1777. 

and  recommend  to  their  Consideration  such  Meas- 
ures as  he  shall  judge  necessary  and  expedient ;  ^^ 

^2  In  England  the  Parliament  is  supreme,  and  the  King 
must  sign  any  bill  submitted  to  him,  even  his  own  death 
warrant,  as  one  writer  on  EngHsh  law  expressed  it.  There- 
fore, English  authorities  have  been  astonished  by  the  ac- 


Its  Sources  and  Application  123 

tivity  of  our  President  in  legislation,  which  often  amounts 
(in  the  opinion  of  some)  to  domination.  But  it  was  the 
intention  of  the  Fathers  of  the  Republic  that  the  President 
should  be  an  active  power.  In  addition  to  conferring  upon 
him  unqualified  authority  to  sign  or  veto  bills  passed  by 
Congress  (Note  38),  they  command  him  in  this  clause  to 
recommend  to  the  consideration  of  Congress  such  legis- 
lation as  he  should  judge  necessary  and  expedient.  Through 
the  reports  of  the  members  of  his  cabinet  his  information 
on  the  state  of  the  country  is  complete,  and  he  is  therefore 
probably  better  equipped  to  make  recommendations  than 
any  other  man.  At  any  rate,  he  is  made  by  the  Consti- 
tution an  important  part  of  the  legislative  mechanism  of 
our  government. 

he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,^^ 

^^  The  Senate  convenes  in  extra  session  immediately  after 
the  new  President  has  taken  the  oath,  to  confirm  his  appoint- 
ments, especially  those  of  his  cabinet  officials.  The  House 
of  Representatives  never  has  been  called  in  session  alone. 
Both  Houses  have  been  called  in  special  session,  but  not 
often.  The  first  special  session  was  called  by  President  John 
Adams  (1797)  because  of  violations  by  France  of  the  law  of 
neutrality  with  respect  to  American  commerce  during  a 
war  with  England.  President  Madison  (1809)  called  a  spe- 
cial session  because  of  violations  of  neutraHty  by  England, 
and  later  (18 13)  he  called  a  special  session  regarding  peace 
with  England  after  the  War  of  181 2.  President  Van  Buren 
(1837)  called  a  special  session  on  account  of  financial 
troubles  following  the  suspension,  in  Jackson's  term,  of  the 
National  Bank.  Upon  the  death  of  President  Harrison 
(1841)  a  special  session  was  called  by  President  Tyler.  A 
special  session  was  called  by  President  Pierce  because  of 
the  failure  of  the  previous  session  "to  make  provision  for 
the  support  of  the  Army"  and  on  account  of  many  troubles 


124  Constitution  of  the  United  States 

with  the  Indians.  The  great  special  session  was  that  called 
by  President  Lincoln  for  July  4,  1861,  preparatory  to  con- 
ducting the  Civil  War.  President  Hayes  (1877)  called  a 
special  session  because  the  previous  one  had  failed  to  support 
the  Army,  and  later  (1879)  he  called  another  because  the 
preceding  Congress  had  failed  to  make  an  appropriation 
for  the  Legislative,  the  Judicial,  and  the  Executive  depart- 
ments of  the  Government.  President  Cleveland  called  a 
special  session  (1893)  on  account  of  *'the  existence  of  an 
alarming  and  extraordinary  business  situation",  which  was 
caused  by  the  act  requiring  the  Government  to  purchase 
a  fixed  quantity  of  silver  each  year.  President  McKinley 
called  a  special  session  (1897)  ^^^  the  reason  that  ''for  more 
than  three  years"  current  expenditures  had  been  greater 
than  receipts,  and  he  advocated  a  tariff  law  to  raise  the 
necessary  revenue. 

This  clause  may  have  been  borrowed  from  an  early  con- 
stitution of  New  York  or  from  that  of  Massachusetts. 

and  in  Case  of  Disagreement  between  them,  with 
Respect  to  the  Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think  proper ;  ^^ 

^  It  never  has  been  necessary  for  the  President  to  exer- 
cise this  authority.  The  working  of  a  written  constitution 
furnishes  many  Uke  illustrations  of  the  potency  of  the  mere 
existence  of  a  clearly  defined  power.  Having  in  mind  the 
very  serious  dissensions  between  the  King  of  England  and 
ParHament,  and  between  the  two  Houses  of  Parliament 
themselves,  respecting  convening  and  adjourning,  and  the 
length  of  sessions,  and  the  legal  rights  of  one  another,  the 
framers  of  our  Constitution  provided  that  Congress  shall 
assemble  at  least  once  a  year  (Note  27)  ;  that  neither  House 
shall  adjourn  for  more  than  three  days  without  the  consent 
of  the  other,  nor  to  any  other  place  than  that  in  which  the 
two  Houses  shall  be  sitting  (Note  31) ;   and  that,  finally^ 


Its  Sources  and  Application  125 

if  they  cannot  agree  upon  adjournment  (but  only  when 
there  is  disagreement),  the  President  may  adjourn  them. 
Charles  I  was  determined  that  his  ministers  should  not 
be  responsible  to  Parliament.  "  Remember,"  he  said,  "  that 
ParHaments  are  altogether  in  my  power  for  their  calling, 
sitting,  and  dissolution ;  and,  therefore,  as  I  find  the  fruits 
of  them  to  be  good  or  evil  they  are  to  continue  or  not  to 
be."  When  in  March,  1629,  Charles  sent  orders  for  the 
dissolution  of  Parliament,  the  Speaker  of  the  House  of  Com- 
mons was  forcibly  prevented  from  leaving  the  chair  until 
the  House  had  voted  resolutions  in  condemnation  of  the 
King's  illegal  practices.  "None  have  gone  about  to  break 
Parliaments,"  declared  John  Eliot,  in  words  which  proved 
to  be  prophetic  of  the  beheading  of  Charles,  "but  in  the  end 
Parliaments  have  broken  them." 

he  shall  receive  Ambassadors  and  other  public  Min- 
isters ;  ^^ 

^^  This  merely  makes  definite  a  matter  of  formality  in 
international  relations.  Each  government  has  some  one 
to  deal  with  the  representatives  of  other  nations,  and  the 
Constitution  makes  the  President  that  one  in  this  country. 
The  Secretary  of  State  acts  for  him  in  most  affairs.  He 
may  refuse  to  receive  a  representative  deemed  objectionable. 
He  may  also  dismiss  an  ambassador  by  giving  him  passports 
to  leave  the  country,  as  has  happened  where  the  conduct 
of  a  representative  has  been  openly  offensive.  President 
Cleveland  (1888)  gave  the  ambassador  from  England  his 
passports  because  he  wrote  a  letter  during  the  presidential 
pohtical  campaign  which  was  widely  published  and  which 
made  comments  adverse  to  the  Cleveland  administration. 
The  ambassador  from  Austria  was  so  dismissed  by  President 
Wilson  for  interference  in  our  affairs  before  we  entered  the 
World  War.  An  objectionable  minister  who  has  not  fla- 
grantly offended  may  be  quigtly  recalled  by  his  govem- 
ixient  upon  the  request  of  the  President. 


126  Constitution  of  the  United  States 

Almonte,  the  Mexican  minister  at  Washington,  de- 
manded his  passports  and  went  home  when  (1845)  Congress 
passed  a  resolution  to  accept  the  proposal  of  the  Republic 
of  Texas  to  come  into  the  Union  as  a  State. 

When  the  Department  of  State  (first  called  Foreign 
Affairs)  was  estabhshed  by  Congress  the  law  provided  that 
the  principal  officer  of  the  Department,  now  the  Secretary 
of  State,  should  carry  on  correspondence  with  other  govern- 
ments "in  such  mannet  that  the  President  of  the  United 
States  shall  from  time  to  time  order  or  instruct."  President 
Grant  felt  that  his  prerogative  in  this  respect  had  been  in- 
vaded by  a  joint  resolution  of  Congress  directing  the  Sec- 
retary of  State  "  to  acknowledge  a  dispatch  of  congratulation 
from  the  Argentine  RepubHc  and  the  high  appreciation  of 
Congress  of  the  compliment  thus  conveyed."  The  Pres- 
ident vetoed  the  resolution  and  said  that  the  "adoption 
has  inadvertently  involved  the  exercise  of  a  power  which 
infringes  upon  the  Constitutional  rights  of  the  executive." 

he  shall  take  Care  that  the  Laws  be  faithfully  execu- 
ted, ^^  and  shall  Commission  all  the  Officers  of  the 
United  States. 

^^  This  Constitution  and  the  laws  of  Congress  made  in 
pursuance  of  it,  and  the  treaties,  are  declared  to  be  (Note 
133)  "the  supreme  law  of  the  land,  .  .  .  anything  in  the 
constitution  or  laws  of  any  State  to  the  contrary  notwith- 
standing." These  National  laws  are  over  all.  The  courts 
in  every  State  are  "bound  thereby."  It  is  made  the  duty 
of  the  President  to  "  take  care"  that  these  laws  are  observed 
and  fully  executed. 

Contrasting  the  Constitution  with  the  Articles  of  Con- 
federation in  this  respect,  Woodrow  Wilson's  "  History 
of  the  American  People"  (Vol.  3,  p.  71)  says :  "-it  conferred 
upon  the  Federal  Government  powers  which  would  make 
it  at  once  strong  and  independent.  ...     Its  laws  were  to 


Its  Sources  and  Application  127 

be,  not  advisory,  but  imperative,  and  were  to  operate,  not 
upon  the  States,  but  directly  upon  individuals,  like  the 
laws  of  any  sovereign." 

RuHng  that  a  United  States  marshal  who  had  killed  a 
man  in  the  act  of  assaulting  a  Federal  judge  travehng  in 
the  performance  of  his  duty  could  not  be  tried  on  a  charge 
of  murder  under  the  laws  of  CaHfornia,  where  the  deed  was 
done,  the  Supreme  Court  of  the  United  States  said  (1890) : 

"We  hold  it  to  be  an  incontrovertible  principle  that  the 
Government  of  the  United  States  may,  by  means  of  physical 
force,  exercised  through  its  official  agents,  execute  on  every 
foot  of  American  soil  the  powers  and  functions  that  belong 
to  it." 

When  physical  force  is  not  necessary  the  United  States 
executes  the  Constitution  and  its  laws  and  treaties  through 
its  judicial  tribunals  and  its  marshals.  Thus  where  the 
Supreme  Court  of  a  State  undertook  to  release  by  habeas 
corpus  a  man  in  the  custody  of  a  United  States  officer  on  a 
charge  of  having  violated  an  Act  of  Congress,  its  action  was 
reversed  (1858)  by  the  Supreme  Court  of  the  United  States, 
Chief  Justice  Taney  saying :  ''For  no  one  will  suppose  that 
a  government  which  -has  now  lasted  nearly  seventy  years, 
enforcing  its  laws  by  its  own  tribunals  and  preserving  the 
union  of  the  States,  could  have  lasted  a  single  year  or  ful- 
filled the  high  trusts  committed  to  it  if  offenses  against  its 
laws  could  not  have  been  punished  without  the  consent  of 
the  State  in  which  the  culprit  was  found.  .  .  .  And  the 
powers  of  the  General  Government,  and  of  the  States,  al- 
though both  exist  and  are  exercised  within  the  same  ter- 
ritorial limits,  are  yet  separate  and  distinct  sovereignties, 
acting  separately  and  independently  of  each  other  within 
their  respective  spheres.  And  the  sphere  of  action  appro- 
priated to  the  United  States  is  as  far  beyond  the  reach  of 
the  judicial  process  issued  by  a  State  judge  or  a  State  court 
as  if  the  line  of  division  was  traced  by  landmarks  and  monu- 
ments visible  to  the  eye. ' ' 


128  Constitution  of  the  United  States 

The  duty  of  the  President  *'to  take  care  that  the  laws  be 
faithfully  executed"  cannot  be  interfered  with  by  the  Judi- 
cial Department.  In  1867  the  Supreme  Court  of  the  United 
States  held  that  it  had  no  jurisdiction  to  entertain  a  bill 
for  injunction  presented  by  the  State  of  Mississippi  to  pre- 
vent President  Johnson  and  General  Ord  from  executing 
two  laws  of  Congress  passed  on  March  2  and  March  23  of 
that  year  over  the  President's  veto  and  known  as  the  Re- 
construction acts.  The  first  of  those  acts  recited  that  no 
legal  government  or  adequate  protection  for  life  and  prop- 
erty existed  in  Mississippi  and  some  other  southern  States 
and  that  it  was  necessary  that  peace  and  good  order  be  en- 
forced until  a  loyal  republican  State  government  could 
be  established,  and  it  accordingly  divided  the  States  into 
five  miUtary  districts  and  made  it  the  duty  of  the  President 
to  assign  an  officer  of  the  army  to  each  district  with  a  suf- 
ficient miHtary  force  to  maintain  order  and  punish  offenders. 
The  second  act  provided  machinery  for  registering  voters 
and  forming  new  constitutions  in  the  States.  *'But  we  are 
fully  satisfied  that  this  court  has  no  jurisdiction  of  a  bill 
to  enjoin  the  President  in  the  performance  of  his  ofiicial 
duties,"  said  Chief  Justice  Taney  in  denying  the  appli- 
cation. 

In  1864  a  citizen  of  Indiana  was  arrested  by  the  miHtary 
authorities,  tried  by  a  miHtary  court  on  the  charge  of  dis- 
loyal acts,  when  the  civil  courts  were  ''open  and  in  the 
proper  and  unobstructed  exercise  of  their  judicial  func- 
tions", and  sentenced  to  be  hanged.  He  was  not  a  resident 
of  a  seceded  State,  nor  a  prisoner  of  war,  nor  a  person  in  the 
military  or  naval  service.  The  sentence  had  been  under 
consideration  by  President  Lincoln  before  his  death,  and  it 
was  finally  approved  by  President  Johnson  as  commander 
in  chief  (Note  85)  of  the  miHtary  forces.  Holding  that  the 
prisoner  should  be  discharged  by  writ  of  habeas  corpus  be- 
cause the  miHtary  tribunal  had  no  legal  existence,  that  "it 
is  the  birthright  of  every  American  citizen  when  charged 


Its  Sources  and  Application  1^9 

with  crime  to  be  tried  and  punished  according  to  law",  and 
that  **if  in  Indiana  he  conspired  with  bad  men  to  assist  the 
enemy  he  is  punishable  for  it  in  the  courts  of  Indiana",  the 
Supreme  Court  of  the  United  States  made  (1866)  this  com- 
ment upon  the  contention  that  the  approval  of  the  sentence 
by  the  President  gave  it  legal  value :  ^'He  is  controlled  by 
law  and  has  his  appropriate  sphere  of  duty,  which  is  to  ex- 
ecute, not  to  make,  the  laws." 

Section  4.  The  President,  Vice  President  and  all 
civil  Officers  of  the  United  States,  shall  be  removed 
from  Office  on  Impeachment  for,  and  Conviction  of, 
Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors.^^* 

^^*  Treason  and  bribery  were  the  worst  offences  in  the 
public  Hfe  of  England  at  that  time.  By  a  later  provision  of 
the  Constitution  (Note  113)  the  many  and  vague  treasons 
in  English  law  were  reduced  in  this  country  to  two  definite 
faults:  (i)  waging  war  against  the  United  States,  or  (2) 
adhering  to  its  enemies.  In  1787,  while  the  Constitutional 
Convention  was  in  session,  Warren  Hastings,  the  first  Gov- 
ernor General  of  Bengal,  was  by  the  House  of  Commons  im- 
peached *'  of  high  crimes  and  misdemeanors."  Hence,  prob- 
ably, the  same  words  in  our  Constitution.  As  the  charges 
against  Hastings  were  of  confiscation  of  property  and  oppres- 
siveness in  government,  the  EngHsh  definition  of  the  words 
may  be  inferred  from  the  accusation.  The  managers  of  the 
impeachment  of  President  Johnson  contended  that  **an 
impeachable  crime  or  misdemeanor  .  .  .  may  consist  of 
a  violation  of  the  Constitution,  of  law,  of  an  official  oath, 
or  of  duty,  by  an  act  committed  or  omitted,  or,  without 
violating  a  positive  law,  by  abuse  of  discretionary  powers 
from  improper  motives,  or  from  any  improper  purpose.' ' 


THE  FUNCTION  OF  THE  COURTS 

"There  is  no  position  which  depends  on  clearer  principles 
than  that  every  act  of  a  delegated  authority  contrary  to 
the  tenor  of  the  commission  under  which  it  is  exercised 
is  void.  No  legislative  act,  therefore,  contrary  to  the  Con- 
stitution, can  be  vaHd.  To  deny  this  would  be  to  aflarm 
that  the  deputy  is  greater  than  his  principal ;  that  the  ser- 
vant is  above  his  master;  that  the  representatives  of  the 
people  are  superior  to  the  people  themselves;  that  men 
acting  by  virtue  of  powers  may  do  not  only  what  their 
powers  do  not  authorize,  but  what  they  forbid. 

"If  it  be  said  that  the  legislative  body  are  themselves 
the  constitutional  judges  of  their  own  powers,  and  that  the 
construction  they  put  upon  them  is  conclusive  upon  the 
other  departments,  it  may  be  answered,  that  this  cannot  be 
the  natural  presumption,  where  it  is  not  to  be  collected 
from  any  particular  provisions  in  the  Constitution.  It  is 
not  otherwise  to  be  supposed,  that  the  Constitution 
could  intend  to  enable  the  representatives  of  the  people  to 
substitute  their  will  to  that  of  their  constituents.  It  is  far 
more  rational  to  suppose,  that  the  courts  were  designed 
to  be  an  intermediate  body  between  the  people  and  the 
legislature,  in  order,  among  other  things,  to  keep  the  latter 
within  the  limits  assigned  to  their  authority.  The  inter- 
pretation of  the  laws  is  the  proper  and  peculiar  province 
of  the  courts.  A  constitution  is,  in  fact,  and  must  be  re- 
garded by  the  judges,  as  a  fundamental  law.  It  therefore 
belongs  to  them  to  ascertain  its  meaning,  as  well  as  the 
meaning  of  any  particular  act  proceeding  from  the  legis- 
lative body.  If  there  should  happen  to  be  an  irreconcilable 
variance  between  the  two,  that  which  has  the  superior  ob- 
ligation and  validity  ought,  of  course,  to  be  preferred ;  or, 
in  other  words,  the  Constitution  ought  to  be  preferred  to 
the  statute,  the  intention  of  the  people  to  the  intention  of 
their  agents."  .^ 

Hamilton,  in  the  "Federalist",  No.  LXXVIH.^ 


ARTICLE  III 

Section  i.  The  judicial  Power  of  the  United  States, 
shall  be  vested  in  one  supreme  Court,  and  in  such 
inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  ^ ^ 

^^  "But  for  this  system  of  United  States  courts  extended 
throughout  the  States  and  supreme  within  its  own  sphere," 
says  Fiske  ("Critical  Period  American  History",  p.  300), 
"the  Federal  Constitution  could  never  have  been  put  into 
practical  working  order.  .  .  .  This  intrusting  to  the  judi- 
ciary the  whole  interpretation  of  the  fundamental  instru- 
ment of  the  government  is  the  most  peculiarly  American 
feature  of  the  work  done  by  the  convention,  and  to  the  sta- 
bility of  such  a  federation  as  ours,  covering  as  it  does 
the  greater  part  of  a  huge  continent,  it  was  absolutely  in- 
dispensable." 

The  first  session  of  the  first  Congress  (Sept.  24, 1789)  pro- 
vided for  a  Supreme  Court  with  "a  chief  justice  and  five  as- 
sociate justices",  four  of  whom  should  constitute  a  quorum. 
In  February,  1801,  the  number  of  associates  was  reduced 
to  four.  On  April  29,  1802,  the  Court  was  enlarged  to  six 
associate  justices.  The  number  of  associates  was  increased 
to  eight  on  March  3,  1837.  On  March  3,  1861,  Congress 
increased  the  Court  by  making  it  consist  of  a  chief  jus- 
tice and  nine  associates,  and  Stephen  J.  Field  of  California 
was  appointed  by  President  Lincoln  to  the  new  associate 
justiceship.  To  prevent  J'resident  Johnson  from  appointing 
Attorney-General  StanberA  to  fill  a  vacancy  on  the  bench. 
Congress  reduced  the  number  of  associates  to  six  on  July  23, 
1866.  The  number  of  assodates  was  increased  to  eight, 
six  of  whom  are  a  quorum,  byiin  act  of  April  10, 1869,  about 


\ 


132  Constitution  of  the  United  States 

a  month  after  Johnson's  term  expired.  One  of  the  ap- 
pointees of  President  Grant  to  the  two  new  places  was  re- 
jected by  the  Senate,  and  the  other,  Edwin  M.  Stanton, 
died  before  he  could  take  his  seat.  Thus  a  court  of  seven 
decided  the  first  Legal  Tender  Case  on  February  7,  1870, 
holding  that  paper  money  ("Greenbacks",  so  called)  could 
not  under  the  Constitution  (see  Note  44),  be  made  a  legal 
tender  in  place  of  coin  in  payment  of  debts.  On  the  same 
day  President  Grant  appointed  WilKam  Strong  of  Penn- 
sylvania, and  Joseph  P.  Bradley  of  New  Jersey,  and  in  May, 
187 1,  another  Legal  Tender  Case  coming  up,  the  first  de- 
cision was  overruled.  At  present  (1922)  the  Supreme  Court 
consists  of  a  chief justjce  andeight__associates. 

*' Inferior  courts"  were  establishedunder  this  clause  by 
the  first  Congress  and  callgd  Circuit  Courts.  They  were 
to  sit  throughout  the  States  for  the  trial  of  causes  arising 
under  the  Constitution,  the  laws  of  Congress,  and  the  trea- 
ties. In  1801,  just  before  the  expiration  of  the  term 
of  John  Adams,  sixteen  circuit  judgeships  were  created, 
and  the  President  made  appointments  of  sixteen  stanch 
Federalists.  The  new  Congress  which  came  in  with  Jef- 
ferson repealed  the  Act;  and,  lest  the  validity  of  the  re- 
peal might  be  brought  to  a  test  in  the  Supreme  Court,  says 
Beveridge  C'John  Marshall",  Vol.  2,  p.  94),  the  coming 
June  term  of  the  Supreme  Court  was  abolished  and  the  term 
which  would  begin  in  December  following  was  set  back  to 
the  second  Monday  in  February,  so  that  the  court  was  prac- 
tically overthrown  for  about  a  year. 

In  1890  Congress  created  under  this  clause,  for  the  relief 
of  the  overburdened  Supreme  Court,  a  Circuit  Court  of 
Appeals  consisting  of  three  judges  in  each  of  the  nine  cir- 
cuits into  which  it  divided  the  United  States  and  its  ter- 
ritories. To  illustrate,  the  First  Circuit  contains  Rhode 
Island,  Massachusetts,  New  Hampshire,  Maine,  and  Porto 
Rico ;  and  the  Ninth  embraces  Arizona,  CaUfornia,  Oregon, 
Nevada,  Washington,  Idaho,  MonUma,  and  Havraii.     lu 


Its  Sources  and  Application  133 

many  cases  the  decision  of  a  Circuit  Court  of  Appeals  is 
final  and  the  litigation  therefore  never  reaches  the  Supreme 
Court. 

Below  the  Circuit  Courts  of  Appeals  (the  Circuit  trial 
courts  having  been  aboHshed)  are  the  United  States  Dis- 
trict Courts  (over  eighty),  there  being  one  or  more  districts 
in  a  State,  according  to  the  needs  of  the  population.  These 
courts  try  civil  and  criminal  cases,  and  appeals  lie  from  them 
to  the  Circuit  Courts  of  Appeals  in  most  cases,  but  in  a  few 
(involving  Federal  questions)  directly  to  the  Supreme  Court. 

In  1855  a  Court  of  Claims  was  created  by  Congress  to 
hear  cases  against  the  United  States,  as  the  sovereign  can  be 
sued  only  upon  its  consent. 

In  1909  Congress  established  a  Court  of  Customs  Appeals 
to  review  decisions  of  the  Board  of  General  Appraisers  on 
questions  arising  out  of  import  duties. 

In  China  and  some  other  countries  consular  courts  have 
been  created  by  Congress,  in  which  the  American  consul 
sits  to  effectuate  treaties  and  try  certain  causes. 

In  organized  territories  of  the  United  States,  hke  Alaska 
and  Hawaii,  the  Courts  are  created  by  Congress ;  but  when 
the  territory  is  admitted  as  a  State,  then  the  Federal  courts 
are  superseded  by  courts  of  the  State's  creation. 

The  Interstate  Commerce  Commission  was  created  in 
1887  to  regulate  commerce  among  the  States  by  railway, 
telegraph,  telephone  or  any  other  means;  and  so  in  1914 
the  Federal  Trade  Commission  was  created  to  prevent  un- 
fair methods  and  unfair  competition  in  interstate  trade. 
While  these  tribunals  are  not  courts,  they  are  mentioned 
here  because  of  their  great  importance. 

The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Oflaces  during  good  Behaviour, 
and  shall,  at  stated  Times,  receive  for  their  Services 
a  Compensation  which  shall  not  be  diminished  during 
their  Continuance  in  Office. ^^ 


134  Constitution  of  the  United  States 

^^  The  Colonial  Declaration  of  Rights  of  October  14, 1774, 
complained  that  judges  were  *' dependent  on  the  Crown  alone 
for  their  salaries." 

A  complaint  in  the  Declaration  of  Independence  was  that 
King  George  III  ''has  made  judges  dependent  on  his  will 
alone  for  the  tenure  of  their  office  and  the  amount  and  pay- 
ment of  their  salaries." 

Lecky  mentions  in  "England  in  the  Eighteenth  Century" 
that  there  was  "sl  long  and  bitter  quarrel  about  the  position 
of  the  judges"  in  the  Colonies.  He  says  that  the  colonists 
wished  the  judges  to  hold  their  office  during  good  behavior 
and  thus  be  beyond  the  control  of  the  home  government. 

The  King  of  England,  becoming  dissatisfied  with  the  con- 
duct of  the  colonists,  demanded  the  surrender  of  their  char- 
ters. This  being  resisted,  a  proceeding  in  quo  warranto  (in- 
quiring by  what  warrant  they  claimed  rights)  was  instituted 
in  the  courts  of  England  "and",  as  Story  well  said,  "it  ter- 
minated, as  in  that  age  it  might  well  be  supposed  it  would, 
in  a  judgment  pronounced  in  1624  by  judges  holding  their 
office  during  his  pleasure." 

Most  of  the  constitutions  of  other  nations  which  have 
been  drafted  since  ours  have  adopted  the  provision  making 
the  term  of  judges  during  good  behavior,  and  many  of  them 
prohibit  the  intimidation  of  the  judge  by  the  reduction  of 
his  salary.  By  the  constitutions  of  Belgium  (183 1-1873) 
and  Brazil  (1890)  judges  are  appointed  for  life.  In  Argen- 
tine (1853,  i860)  and  Chile  (1833-1893)  the  judges  hold 
during  good  behavior.  It  is  significant  that  the  constitutions 
of  the  three  great  British  dependencies,  those  of  the  Do- 
minion of  Canada  (1867),  the  Commonwealth  of  Australia 
(1900),  and  the  Union  of  South  Africa  (1909),  follow  ex- 
pHcitly  that  of  the  United  States  in  requiring  that  judges 
be  appointed,  that  they  hold  office  during  good  behavior, 
and  that  their  salaries  be  not  reduced.  Canada  had  seen 
the  practical  operation  of  this  clause  of  our  Constitution  for 
over  three  quarters  of  a  centuryl    It  was  more  than  a  cen- 


Its  Sources  and  Application  135 

tury  and  a  decade  old  when  Australia  followed  it.  In  1909, 
when  the  Union  of  South  Africa  was  established,  this  con- 
stitutional provision  had  served  for  1 20  years  the  great  pur- 
pose for  which  it  was  designed. 

In  December,  1919,  the  United  States  District  Court  of 
Kentucky,  in  a  suit  brought  by  another  district  judge,  held 
that  the  Income  Tax  Act  of  September  24,  1919,  imposing  a 
tax  upon  salaries,  including  those  of  the  judges  of  the  Fed- 
eral courts,  was  not  intended  to  and  therefore  did  not  di- 
minish the  compensation  of  judges  within  the  meaning  of 
this  clause. 

On  June  i,  1920,  the  Supreme  Court  reversed  that  de- 
cision, holding  that  the  tax  on  the  salaries  of  judges  "was 
imposed  contrary  to  the  Constitutional  prohibition  and  so 
must  be  adjudged  invaUd."  The  Court  expressed  "regret 
that  its  solution  falls  to  us,  and  this  although  each  member 
[of  the  Supreme  Court]  has  been  paying  the  tax  in  respect 
of  his  salary  voluntarily  and  in  regular  course."  But,  it 
added,  "jurisdiction  of  the  present  case  cannot  be  decHned 
or  renounced ;  the  plaintiff  was  entitled  by  law  to  invoke 
our  decision."  Reviewing  the  history  of  the  clause,  the 
Court  said  that  "  the  primary  purpose  of  the  prohibition 
against  diminution  was  not  to  benefit  the  judges"  —  it  was 
for  the  public  welfare  by  making  possible  an  able  and  in- 
dependent bench. 

Under  like  constitutional  provisions  in  Pennsylvania, 
Louisiana,  and  North  Carolina,  the  rulings  had  been  that 
the  judicial  salary  cannot  be  touched  even  by  a  tax.  Up 
to  1862  no  attempt  had  been  made  to  tax  the  salaries  of 
judges.  When  Chief  Justice  Taney  raised  the  question, 
the  Government  discontinued  the  Civil  War  income  tax 
as  to  Federal  judges  and  refunded  to  the  judges  what  had 
been  withheld  by  the  Treasurer  of  the  United  States.  In 
the  Income  Tax  Act  of  1894  the  salaries  of  the  judges  were 
not  mentioned.  In  the  acts  of  1913,  191 6,  and  191 7  they 
were  expressly  excepted  from  the  income  tax.    But  in  the 


136  Constitution  of  the  United  States 

Act  of  1919  income  was  made  to  include  for  taxation  *'the 
compensation  received  as  such"  by  ''the  President  of  the 
United  States,  the  judges  of  the  Supreme  and  inferior  courts 
of  the  United  States",  and  some  others. 

The  principle  settled  by  the  decision  of  the  SupremevCourt 
applies  also  to  the  salary  of  the  President,  which  is  to  be 
neither  increased  nor  diminished  (Note  82)  during  the  term 
for  which  he  was  elected. 

Section  2.  The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Consti- 
tution, the  Laws  of  the  United  States,  and  Treaties 
made,  or  which  shall  be  made,  under  their  Author- 
ity ;»9 

^^  By  the  ''judicial  power",  as  distinguished  from  the 
legislative  power  and  the  executive  power,  is  meant  the 
authority  to  hear  and  determine  controversies  as  to  law  or 
fact  between  the  government  and  individuals,  or  between 
individual  parties.  "That  power  is  capable  of  acting," 
said  the  Supreme  Court,  "only  when  the  subject  is  sub- 
mitted to  it  by  a  party  \Mho  asserts  his  rights  in  the  form 
prescribed  by  law ;  it  then  becomes  a  cas^."  The  Constitu- 
tion of  the  Commonwealth  of  Australia  (1900),  which  copies 
this  paragraph  almost  verbatim,  defines  judicial  power  as 
"a  power  to  declare  and  apply  the  laws  of  the  Common- 
wealth." A  court  does  not  express  an  opinion  upon  the 
Constitution,  a  law  of  Congress,  or  a  treaty  except  in  a 
"  case  "  —  when  its  judicial  power  has  been  invoked  by  some 
one  asserting  a  right.  Nor  does  a  court  ever  decide  a  con- 
stitutional question  if  it  can  be  avoided ;  that  is,  if  the  case 
may  be  disposed  of  by  the  decision  of  other  questions  the 
constitutional  question  will  be  passed.  The  purpose  in 
this  clause  is  that  essentially  National  questions  shall  be 
tried  in  National  courts. 

"One  great  object  in  the  establishment  of  the  courts  of 


'^ 


Its  Sources  and  Application  137 

the  United  States  and  regulating  their  jurisdiction/'  said 
the  Supreme  Court,  *'was  to  have  a  tribunal  in  each  State 
presumed  to  be  free  from  local  influence  and  to  which  all 
who  were  non-residents  or  aliens  might  resort  for  legal 
redress." 

Under  the  ArtTrlpgj}f  rnnfpHprntiQn  th^ra^  were  no  such 
tribunals  as  the  present  National  (Federal,  so  called)  courts, 
and  experience  had  taught  the  positive  need  of  them. 

The  judicial  power  does  not  extend  to  a  determination  of 
poHtical  questions,  such  as  whether  a  State  has  a  republican 
form  of  government. 

When  a  case  arises  in  a  State  court  and  involves  a  question 
of  the  Constitution,  or  of  an  act  of  Congress,  or  of  a  treaty, 
it  is  the  duty  of  the  court  to  follow  and  enforce  the  National 
law;  for  the  Constitution  explicitly  and  emphatically  re- 
quires (Note  134)  that  "the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  Constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding."  Should  a  State 
law,  for  example,  deny  *'the  equal  protection  of  the  laws" 
by  favoring  one  class  of  citizens  as  against  another;  or 
should  a  State  pass  an  ex  post  facto  law,  or  tax  exports,  or 
interfere  with  commerce  among  the  States,  or  take  private 
property  for  public  use  without  compensation,  or  do 
any  other  of  many  things  forbidden  by  the  Constitution 
which  have  been  done :  and  should  the  Supreme  Court  of 
the  State  uphold  such  a  law  in  a  case  brought  by  a  citizen 
claiming  to  be  wronged,  then  "the  judicial  power  of  the 
United  States"  would  "extend"  to  such  a  case  and  it  would 
be  the  duty  of  the  Supreme  Court  of  the  Nation  to  reverse 
the  ruling  of  the  tribunal  of  the  State  and  to  declare  the  law 
of  the  State  to  be  void  and  inoperative  because  of  conflict 
with  "the  supreme  law  of  the  land."  In  the  course  of  our 
history  the  Supreme  Court  of  the  United  States  has  been 
under  the  necessity  of  deciding  many  siich  cases. 

Alexander  Hamilton  discussed  in  the  '^ Federalist"  the 
relative  powers  of  the  Legislative  Department,  the  Execu- 


1S8  Constitution  of  the  United  States 

tive  Department,  and  the  Judicial  Department.  ''The 
Executive  not  only  dispenses  the  honors,"  he  said,  ''but 
holds  the  sword  of  the  community.  The  Legislative  not 
only  commands  the  purse,  but  prescribes  the  rules  by 
which  the  duties  and  rights  of  every  citizen  are  to  be  reg- 
ulated. The  Judiciary,  on  the  contrary,  has  no  influence 
over  either  the  sword  or  the  purse  .  .  .  and  can  take  no 
active  resolution  whatever.  It  may  truly  be  said  to  have 
neither  force  nor  will,  but  merely  judgment.  This  sirfiple 
view  of  the  matter  suggests  several  important  consequences 

—  it  proves  incontestably  that  the  judiciary  is  beyond  com- 
parison the  weakest  of  the  three  departments  of  power,  that 
it  can  never  attack  with  success  either  of  the  others,  and  that 
all  possible  care  is  requisite  to  enable  it  to  defend  itself 
against  their  attacks." 

In  Canada  the  Supreme  Court  of  the  Dominion  passes 
upon  legislation  of  the  Provinces  and  of  the  Dominion  just 
as  ours  determines  whether  an  act  of  a  State  legislature  or 
an  act  of  Congress  goes  beyond  the  bounds  fixed  by  the  Con- 
stitution. Many  acts  of  legislation  in  Canada  have  been 
held  void  for  conflict  with  the  Constitution,  the  British 
North  America  Act  of  ParUament  of  1867,  which  follows 
closely  in  general  plan  the  Constitution  of  the  United  States. 
This  statement  may  be  repeated  about  Australia  and  its 
constitution  of  1900.  A  decision  of  the  Supreme  Court  of 
Canada  may  be  (and  many  decisions  have  been)  reviewed 
and  sustained  or  reversed  by  the  Privy  Council  in  London, 
the  court  of  last  resort  of  the  British  colonies,  except 
AustraHa,  which  refused  in  1900  to  permit  Parliament  to 
insert  in  its  constitution  a  provision  for  such  appeal.  It 
contended  that  experience  in  the  United  States  with  a  court 
of  final  resort  justified  its  opposition  to  the  plan. 

—  to  all  cases  Affecting  Ambassadors,  other  public 
Ministers,  and  Consuls ;  ^^° 

^°°  It  is  fitting  that  the  representatives  of  nations  should 


Its  Sources  and  Application  139 

have  a  hearing  in  our  National  courts  when  their  rights 
have  been  drawn  into  question. 

—  to  all  Cases  of  admiralty  and  maritime  Jiirisdic- 
tion;ioi 

^^^  These  cases  arise  out  of  the  law  of  the  sea  and  often  in- 
volve rights  of  citizens  of  other  countries.  Therefore  Na- 
tional jurisdiction  of  the  subject  is  preferable  to  what  might 
be  differing  decisions  by  State  courts. 

—  to  Controversies  to  which  the  United  States  shall 
be  a  Party;  102 

102  The  United  States  is  the  moving  party  in  its  own  courts 
against  violators  of  the  revenue  laws  and  the  many  other 
acts  of  Congress  contained  in  wh'^t  is  called  the  penal  code. 
It  also  brings  civil  suits  in  its*  courts  to  enforce  its  rights,  as 
to  set  aside  a  patent  to  public  land  obtained  by  fraud,  or 
to  cancel  a  certificcCte  of  naturalization  secured  by  an  alien 
who  did  not  intend  to  be  loyal  to  the  United  States,  or  to 
enforce  any  rights  of  contract,  or  to  collect  money  owing  to 
it.  The  cases  which  the  United  States  litigates  in  its  courts 
are  of  great  number  and  variety.  Were  there  no  Federal 
courts  the  Nation  might  not  always  secure  speedy  and  ad- 
equate relief  in  the  courts  of  the  States. 

But  because  the  Government  enters  its  courts  at  pleasure 
to  seek  redress  from  individuals  or  corporations,  or  to  punish 
them  under  its  penal  laws,  it  by  no  means  follows  that  in- 
dividuals or  corporations  may  in  like  manner  bring  actions 
against  it.  The  sovereign  cannot  be  sued  except  upon  its 
consent,  and  the  United  States  has  established  a  special  tri- 
bunal (the  Court  of  Claims)  for  the  trial  of  special  cases, 
particularly  claims  for  money. 

Nor  because  the  Nation  may  sue  a  State,  as  it  has  done 
to  settle  a  boundary  dispute  between  a  State  and  a  Terri- 
tory, does  it  follow  that  a  State  may  sue  the  Nation.  Thus 
the  Supreme  Court  held  (1907)  that  the  State  of  Kansas 


140  Constitution  of  the  United  States 

could  not  maintain  in  that  court  under  this  clause  a  suit 
against  the  United  States  respecting  grants  of  railroad  right 
of  way  through  Indian  lands  of  which  the  State  claimed  to 
be  the  trustee.  It  was  said  that  public  policy  forbids  that 
the  sovereign  be  sued  without  its  consent.  That  consent 
was  given  as  to  some  cases  (but  not  all)  by  the  creation  of 
the  Court  of  Claims. 

Where  rev_enue  agents  of  the  Unitef^  ^t^tes.  acting  in 
pursuance  of  the  National  prohibitory  law,  were  indicted 
in  the  State  of  Oregon  for  involuntary  manslaughter,  they 
having  unintentionally  killed  a  man  while  they  were  en- 
gaged in  the  performance  of  a  lawful  act,  it  was  hel^  (1920) 
by  the  United  States  District  Court  that  \he.  Stntp  ^^^  ^a 
right  to  prevent  the  removal  of  the  case  to  a  Federal  murt. 
under  acts  of  Congress  dating  back  to  1833,  when  South 
Carolina  undertook  to  prevent  the  collection  of  National 
revenue,  and  Congress  provided  for  the  trial  in  Federal 
courts  of  criminal  charges  against  Federal  officers.  During 
the  Civil  War  (1863)  it  was  considered  necessary,  owing  to 
the  difficulties  which  beset  officers  of  the  Government  in 
the  southern  and  in  some  of  the  northern  States,  to  make 
the  act  include  civil  cases  as  well  as  criminal.  The  National 
Government  takes  care  in  its  own  courts  of  litigation  in 
which  it  or  its  representatives  are  concerned. 

—  to  Controversies  between  two  or  more  States ;  ^°^ 

^°^  In  an  early  case  the  Supreme  Court  said  that  the  Con- 
stitution had  made  justiciable  —  that  is,  properly  triable 
or  disposable  in  a  court  rather  than  by  the  sword,  by  treaty, 
or  otherwise  —  some,  matters  *' which  were  not  known  as 
such  at  the  common  law ;  such,  for  example,  as  controversies 
between  States  as  to  boundary  lines,  and  other  questions 
admitting  of  judicial  solutions."  That  is  another  example 
of  entirely  new  methods  devised  and  presented  to  mankind 
by  the  Fathers  of  the  RepubHc.  Beginning  in  1799,  with 
a  controversy  between  New  York  and  Connecticut,  many 


Its  Sources  and  Application  141 

disputes  between  States  respecting  boundaries  have  been 
disposed  of  by  the  Supreme  Court. 

''Instead  of  reserving  the  right  to  seek  redress  for  in- 
justice from  another  State  by  their  sovereign  powers,"  wrote 
Chief  Justice  Taney,  ''they  [the  States]  have  bound  them- 
selves to  submit  to  the  decision  of  this  court,  and  to  abide 
by  its  judgment.  And  it  is  not  out  of  place  to  say,  here, 
that  experience  has  demonstrated  that  this  power  was  not 
unwisely  surrendered  by  the  States ;  for  in  the  time  that  has 
already  elapsed  since  this  government  came  into  existence, 
several  irritating  and  angry  controversies  have  taken  place 
between  adjoining  States,  in  relation  to  their  respective 
boundaries,  and  which  have  sometimes  threatened  "to  e^d 
in  force  and  violence,  but  for  the  power  vested  in  this  court 
to  hear  them  and  decide  between  them. ' ' 

Other  cases,  as  that  of  Kansas  against  Colorado  for 
draining  by  irrigation  the  Arkansas  River  (1907)  to  the 
damage  of  farmers  in  the  complaining  State,  in  which  it 
was  found  that  "little  if  any  detriment"  had  been  worked 
to  "the  great  body  of  the  valley"  because  the  large  flow 
is  underground,  Jiave  been  heard  by  the  Supreme  Court. 
So  Missouri  was  held  (1906)  not  to  have  sustained  its  al- 
legations against  IlHnois  regarding  the  pollution  of  the 
waters  of  the  Mississippi  by  the  Chicago  drainage  channel. 

These  examples  are  enough  to  show  the  wisdom  of  this 
provision  and  the  usefulness  of  it  in  everyday  affairs. 

—  between  a  State  and  Citizens  of  another  State ;  ^^ 

^^*  It  is  manifest  that  in  a  controversy  between  a  State 
and  a  citizen  of  another  State  the  citizen  should  have  the 
right  to  remove  the  case  against  him  from  the  court  of  the 
suing  State  to  a  court  of  the  Nation.  The  citizen  of  a  State 
is  also  a  citizen  of  the  United  States,  and  that  should  en- 
title him  to  Ktigate  in  a  court  of  the  United  States  when  a 
State  is  plaintiff.  The  language  of  this  clause  imports  that 
a  citizen  of  one  State  may  sue  another  (not  his  own)  State. 


142  Constitution  of  the  United  States 

This  objection  was  raised  when  the  Constitution  was  before 
the  States  for  adoption.  James  Madison  (afterward  Pres- 
sident)  and  John  Marshall  (afterward  Chief  Justice)  said 
that  an  individual  could  not  ''call  any  State  into  Court." 
Nevertheless,  in  1793  the  Supreme  Court  held  in  a  historic 
case  (Chisholm,  a  citizen  of  South  CaroUna,  against  Georgia) 
that  he  could.  As  many  of  the  States  were  in  poor  financial 
condition  and  liable  to  suits  for  money,  that  decision, 
though  logical  under  the  language  of  the  clause,  was  threat- 
ening as  a  precedent.  It  caused  a  great  commotion,  which 
resulted  in  ihe  adoption  of  the  Eleventh  Amendment  (Note 
164)  on  January  8,  1798,  declaring  that  ''the  judicial  power 
of  the  United  States"  should  not  be  construed  to  extend 
to  a  suit  against  a  State  by  a  citizen  of  another  State,  or 
by  a  citizen  or  subject  of  any  foreign  State. 

The  Constitution  of  Australia  grants  jurisdiction  to  the 
High  (Supreme)  Court  where  a  citizen  desires  to  sue  a  State. 

In  our  country  a  person  having  a  claim  against  a  State 
must  apply  to  the  legislature  for  relief,  unless  the  State 
has  established  a  Court  of  Claims,  which  some  States  have 
done. 

—  between  Citizens  of  different  States,^^^ 

^^^  Several  States  have  passed  laws  to  prevent  the  removal 
under  this  clause  to  Federal  courts  of  suits  begun  in  the 
courts  of  the  States  against  non-residents,  but  these  acts 
have  been  held  void  for  conflict  with  the  Constitution.  In 
a  recent  case  (1908)  the  Supreme  Court  said :  "A  State  can- 
not tie  up  a  citizen  of  another  State  having  property  within 
its  territory,  invaded  by  unauthorized  acts  of  its  own  offi- 
cers, to  suits  for  redress  in  its  own  courts."  The  dispute  be- 
tween citizens  of  dififerent  States  is  one  in  which  the  Nation 
is  properly  concerned;  the  contesting  parties  are  citizens 
of  the  Nation  as  distinguished  from  citizens  of  a  State.  The 
practical  need  for  this  clause  was  early  learned  by  the 
Government  itself.    When  South  Carolina  called  (1832) 


Its  Sources  and  Application  143 

a  convention  and  adopted  an  ordinance  to  resist  the  col- 
lection of  duties  imposed  by  a  tariff  law  of  Congress,  and 
the  legislature  of  the  State  passed  "an  act  to  carry  into 
effect  in  part  an  ordinance  to  nullify  certain  acts  of  the  Con- 
gress of  the  United  States",  the  revenue  officers  of  the 
Nation  were  so  badly  dealt  with  that  Congress  (1833) 
passed  "an  act  further  to  provide  for  the  collection  of  duties 
on  imports'^  which  gave  a  right  of  action  in  a  Federal  court 
to  a  revenue  officer  injured  in  person  or  property  and  also 
gave  him  the  right  to  remove  from  a  State  court  to  a  Federal 
court  any  suit  or  prosecution  brought  against  him.  And  in 
the  midst  of  the  Civil  War  (March  3,  1863),  three  months 
after  the  Emancipation  of  the  Negro,  an  act  was  passed  by 
Congress  providing  for  the  removal  to  Federal  courts  of  any 
civil  or  criminal  case  brought  in  a  State  court  against  "  any 
person  who  is  denied  or  cannot  enforce  in  the  judicial  tri- 
bunals of  the  State  .  .  .  any  right  secured  to  him  by  any 
law  providing  for  the  equal  civil  rights  of  citizens  of  the 
United  States."  In  the  Civil  War,  again,  the  draft  officers 
of  the  Nation  were  protected  by  the  Federal  courts  where 
public  f  eehng  was  against  the  Union. 

"The  Constitution  was  not  formed  merely  to  guard  the 
States  against  danger  from  foreign  nations,  but  mainly  to 
secure  union  and  harmony  at  home,  for  if  this  object  could 
be  attained  there  would  be  but  little  danger  from  abroad," 
said  the  Supreme  Court  of  the  United  States  in  reversing 
the  decision  of  the  highest  court  of  a  State  which  had  under- 
taken to  release  by  its  writ  of  habeas  corpus  a  man  in  the  cus- 
tody of  a  United  States  marshal  on  a  charge  of  violating  an 
act  of  Congress;  "and  to  accomplish  this  purpose,  it  was 
felt  by  the  statesmen  who  framed  the  Constitution,  and  by 
the  people  who  adopted  it,  that  it  was  necessary  that  many 
of  the  rights  of  sovereignty  which  the  States  then  possessed 
should  be  ceded  to  the  general  government ;  and  that,  in  the 
sphere  of  action  assigned  to  it,  it  should  be  supreme,  and 
strong  enough  to  execute  its  own  laws  by  its  own  tribunals, 


144  Constitution  of  the  United  States 

without  interruption  from  a  State  or  from  State  authorities. 
And  it  was  evident  that  anything  short  of  this  would  be  in- 
adequate to  the  main  objects  for  which  the  government  was 
established ;  and  that  local  interests,  local  passions  or  prej- 
udices, incited  and  fostered  by  individuals  for  sinister  pur- 
poses, would  lead  to  acts  of  aggression  and  injustice  by  one 
State  upon  the  rights  of  another,  which  would  ultimately 
terminate  in  violence  and  force,  unless  there  was  a  common 
arbiter  between  them,  armed  with  power  enough  to  protect 
and  guard  the  rights  of  all,  by  appropriate  laws,  to  be  carried 
into  execution  peacefully  by  its  judicial  tribunals.'' 

—  between  Citizens  of  the  same  State  claiming  Lands 
under  Grants  of  different  States,i^^ 

^°^This  is  only  a  landmark  nov*.  In  1787  there  were 
many  and  serious  disputes  among  persons  claiming  lands 
which  had  been  granted  by  different  States,  the  boundaries 
of  States  being  very  vaguely  defined. 

and  between  a  State,  or  the  Citizens  thereof,  and  for- 
eign States,  Citizens  or  Subjects.^^^ 

^°^  Any  foreign  Nation,  or  any  citizen  thereof,  is  entitled 
to  sue  any  American  citizen  in  one  of  our  Federal  courts. 
In  like  manner  a  citizen  of  the  United  States  may  sue  a 
foreign  State  or  a  citizen  of  a  foreign  State  in  a  court  of  the 
United  States  —  but  of  course  he  must  first  find  the  party 
on  American  soil.  A  writer  on  the  jurisdiction  of  Federal 
courts  states  that  he  advised  the  Governor  General  of  Can- 
ada that  Queen  Victoria  might  bring  a  suit  in  the  Supreme 
Court  of  the  United  States  to  determine  the  liability  of 
the  State  of  New  York  on  a  claim  of  tribes  of  Indians  which 
had  gone  from  that  State  to  Canada. 

In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State 
shall  be  Party,  the  supreme  Court  shall  have  origi- 
nal Jurisdiction.^°^ 


Its  Sources  and  Application  145 

^^^  That  is,  the  action,  suit,  or  proceeding  must  be  begun 
in  the  Supreme  Court. 

In  all  the  other  Cases  before  mentioned,  the  su- 
preme Court  shall  have  appellate  Jurisdiction,^^^  both 
as  to  Law  and  Fact,  with  such  Exceptions,  and  under 
such  Regulations  as  the  Congress  shall  make. 

109  xhis  means  that  the  proceeding  must  originate  in  an 
inferior  court  and  be  there  brought  to  decision  or  judgment. 
After  that  the  case  may  be  taken  to  the  Supreme  Court  for 
review. 

The  Supreme  Court  of  the  Dominion  of  Canada  is  not  the 
court  of  last  resort.  Cases  involving  questions  of  consti- 
tutional law  (such  as  a  controversy  between  two  provinces, 
or  between  a  province  and  the  Dominion,  regarding  power) 
are  finally  heard  by  the  Privy  Council  in  London.  This 
practice  obtains  generally  in  other  British  colonies,  ex- 
cept Australia,  which  omitted  from  its  draft  of  a  constitution 
(1900)  a  provision  for  such  appeal.  The  Supreme  Court  of 
Canada,  precisely  after  the  manner  of  ours,  passes  upon  the 
constitutionality  of  laws  enacted  by  the  provincial  parlia- 
ments and  by  the  Dominion  Parliament.     So  in  Australia. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
•  ment,  shall  be  by  Jury ;  "^     • 

^^°  In  the  Colonial  Declaration  of  Rights  of  October  19, 
1765,  it  was  said  "that  trial  by  jury  is  the  inherent  and 
invaluable  right  of  every  British  subject  in  these  Colonies", 
and  there  was  condemned  an  act  of  Parliament  *' extending 
the  jurisdiction  of  the  courts  of  the  admiralty  beyond  its 
ancient  limits"  so  as  to  try  colonists  for  various  offences 
without  a  jury.  In  the  Declaration  fcf  October  14,  1774,  it 
was  said  that  the  colonists  were  entitled  "to  the  great  and 
inestimable  privilege  of  being  tried  by  their  peers  of  the 
vicinage." 


146  Constitution  of  the  United  States 

The  jury  trial  is  given  here  and  in  the  Sixth  Amendment 
(Note  153)  only  in  criminal  cases,  but  the  Seventh  Amend- 
ment guarantees  a  jury  in  civil  cases  (Note  157)  in  which 
the  amount  in  controversy  exceeds  twenty  dollars.  While 
this  provision  relates  to  trials  in  Federal  courts  only,  the 
constitutions  of  the  States  have  similar  provisions.  Indeed, 
such  a  clause  was  in  the  constitutions  of  many  of  the  States 
before  the  National  Constitution  was  drafted.  The  jury  of 
the  Constitution  is  the  jury  of  the  England  of  that  day.  It 
consists  of  twelve  men  and  their  verdict  must  be  unanimous. 

The  Declaration  of  Independence  arraigned  the  English 
Government  for  "depriving  us  in  many  cases  of  the  benefit 
of  a  trial  by  jury." 

Referring  to  the  provisions  of  the  Constitution  guaran- 
teeing to  the  citizen  a  pubhc  trial  by  jury,  with  witnesses 
and  counsel  in  his  defense,  the  Supreme  Court  of  the  United 
States,  holding  (1866)  that  a  Citizen  of  Indiana  who  had 
not  been  in  the  military  service,  but  who  had  been  sentenced 
(1864)  by  a  miHtary  tribunal  to  be  hanged  for  disloyal  con- 
duct during  the  Civil  War,  should  have  been  tried  before 
a  jury  in  a  court  of  law,  the  courts  of  Indiana  never  having 
been  closed  by  the  War,  employed  this  language : 

"Time  has  proven  the  discernment  of  our  ancestors; 
for  even  these  provisions,  expressed  in  such  plain  English 
words  that  it  would  seem^the  ingenuity  of  man  could  not 
evade  them,  are  now  after  the  lapse  of  more  than  seventy 
years,  sought  to  be  avoided .  Those  great  and  good  men 
foresaw  that  troublous  times  would  arise,  when  rulers  and 
people  would  become  restive  under  restraint,  and  seek  by 
sharp  and  decisive  measures  to  accompHsh  ends  deemed 
just  and  proper,  and  that  the  principles  of  constitutional 
liberty  would  be  in  peril  unless  estabHshed  by  irrepealable 
law.  The  history  of  {he  world  had  taught  them  that  what 
was  done  in  the  past  might  be  attempted  in  the  future. 
The  Constitution  of  the  United  States  is  a  law  for  rulers 
and  people,  equally  in  war  and  peace,  and  covers  with  the 


Its  Sources  and  Application  147 

shield  of  its  protection  all  classes  of  men,  at  all  times,  and 
imder  all  circumstances.  No  doctrine  involving  more  per- 
nicious consequences  was  ever  invented  by  the  wit  of  man 
than  that  any  of  its  provisions  can  be  suspended  during  any 
of  the  great  exigencies  of  government.  Such  a  doctrine 
leads  directly  to  anarchy  or  despotism." 

and  such  Trial  shall  be  held  in  the  State  where  the 
said  Crimes  shall  have  been  committed ;  ^^^ 

^^^  In  the  Colonial  Declaration  of  Rights  of  October  14, 
1774,  an  act  of  Parliament  of  the  twelfth  year  of  George  III, 
for  the  protection  of  the  King's  docks  and  munitions  in 
the  Colonies,  was  condemned  because  it  "declares  a  new 
offense  in  America  and  deprives  the  American  subject  of 
a  constitutional  trial  by  jury  of  the  vicinage  by  authorizing 
the  trial  of  any  person  charged  with  the  committing  of  any 
offense  described  in  the  said  act,  out  of  the  realm,  to  be  in- 
dicted and  tried  for  the  same  in  any  shire  or  county  within 
the  realm",  that  is,  in  any  county  of  England  or  Scotland ; 
and  [it  was  recited  in  the  preamble  that  Parliament  had 
lately  resolved  that,  by  the  force  of  a  statute  passed  in 
the  thirty-fifth  year  of  the  reign  of  Henry  VIII,  "colonists 
may  be  transported  to  England  and  tried  there  upon 
accusations  for  treasons  and  misprisions,  or  concealments 
of  treasons  committed  in  the  Colonies,  and  by  a  late  statute 
such  trials  have  been  directed  in  cases  therein  mentioned." 

The  Declaration  of  Independence  complained  of  King 
George  III  that  "he  has  combined  with  others  to  subject 
us  to  a  jurisdiction  foreign  to  our  Constitution  and  unac- 
knowledged by  our  laws"  ;  and  it  said  that  he  had  given 
"his  assent  to  their  acts  of  pretended  legislation  ...  for 
transporting  us  beyond  seas  to  be  tried  for  pretended 
offenses."  This  provision  of  our  Constitution  has  been 
strictly  enforced  by  the  courts  whenever  attempts  have 
been  made  (and  they  have  been  numerous)  to  take  an  ac- 


148  Constitution  of  the  United  States 

cused  person  from  his  home  to  a  distant  jurisdiction  for 
trial. 

In  President  Grant's  administration  (1873)  an  attempt 
was  made  to  take  to  Washington  for  trial  on  a  charge  of 
libel  the  editor  of  a  paper  published  in  New  York  and  cir- 
culated in  the  National  capital.  The  court,  finding  that  the 
defendant  "if  removed  to  the  District  of  Columbia  would  be 
tried  in  a  manner  forbidden  by  the  Constitution",  refused  to 
grant  a  warrant  for  removing  him.  In  the  administration 
of  President  Roosevelt  (1909)  a  like  dispute  originated. 
An  attempt  was  made  by  ofiicers  of  the  United  States  to 
take  to  Washington  for  trial  on  a  charge  of  criminal  Hbel 
editors  living  in  Indianapolis  who  had  questioned  the 
motive  of  the  Government  in  changing  its  plan  for  an 
Isthmian  canal  from  the  Nicaraguan  route  to  the  Panama 
route  after  a  committee  had  reported  in  favor  of  the 
former,  which  could  be  purchased  for  $40,000,000,  while 
the  latter  was  to  cost  $100,000,000.  The  United  States 
District  Court  at  Indianapolis  denied  the  application 
for  the  removal  of  the  defendants,  and  said :  "To  my 
mind  that  man  has  read  the  history  of  our  institutions 
to  little  purpose  who  does  not  look  with  grave  appre- 
hension upon  the  possibiHty  of  the  success  of  a  proceeding 
such  as  this.  ...  If  the  prosecuting  officers  have  the 
right  to  select  the  tribunal  ...  if  the  government  has  that 
power,  and  can  drag  citizens  from  distant  States  to  the 
capital  of  the  Nation  there  to  be  tried,  then,  as  Judge  Cooley 
says,  this  is  a  strange  result  of  a  revolution  where  one  of 
the  grievances  complained  of  was  the  assertion  of  the  right 
to  send  parties  abroad  for  trial." 

but  when  not  committed  within  any  State,^^^  the  Trial 
shall  be  at  such  Place  or  Places  as  the  Congress  may 
by  Law  have  directed. 


112 


As  on  the  high  seas. 


Its  Sources  and  Application  149 

Section  3.  Treason  against  the  United  States,  shall 
consist  only  in  levying  War  against  them,  or  in  adher- 
ing to  their  Enemies,  giving  them  Aid  and  Comfort.^^^ 

113  William  Blackstone,  whose  lectures  (1758)  at  the  Uni- 
versity of  Oxford  became  the  great  text-book  on  English 
law,  with  which  lectures  the  members  of  the  Constitutional 
Convention  were  very  familiar,  giyes  a  statement  of  the 
law  of  treason  which  embraced  at  least  seventeen  acts 
punishable  by  death  —  death  in  a  ^'very  solemn  and  ter- 
rible'' way,  the  commentator  says,  by  hanging,  followed 
by  disembowelling  and  quartering.  Hallam  (^'Consti- 
tutional History  of  England"),  dealing  with  civil  govern- 
ment in  the  reign  of  Elizabeth  (i 558-1603),  refers  to  "  those 
glaring  transgressions  of  natural  as  well  as  positive  law 
that  reduced  our  courts  of  justice  in  cases  of  treason  to 
little  better  than  the  caverns  of  murderers."  That  is 
enough  to  make  clear  why  the  Founders  of  the  Republic 
defined  treason  —  the  only  crime  defined  in  the  Constitu- 
tion —  and  limited  it  to  two  offenses.  A  proposal  to  let 
Congress  define  treason,  as  the  English  Parliament  had 
always  done,  was  rejected  by  the  Constitutional  Con- 
vention. The  Constitution  defined  it  and  Congress  can- 
not change  it.  Treason  "shall  consist  ow/y"  of  the  Con- 
stitutional specifications. 

In  the  celebrated  trial  of  Aaron  Burr  (1807)  on  a  charge 
of  treason  in  the  United  States  Circuit  Court  at  Richmond, 
Virginia,  the  meaning  of  "levying  war"  was  discussed  by 
Chief  Justice  Marshall,  who  presided  in  that  circuit,  in 
the  light  of  a  full  review  of  English  history ;  for  this  clause 
was  borrowed  from  an  elaborate  act  of  Parliament  of  the 
reign  of  Edward  III  (1352)  saying  that  "if  a  man  do  levy 
war  against  our  lord  the  King  and  his  realm",  or  "if  a  man 
be  adherent  to  the  King's  enemies  in  his  realm,  giving  to 
them  aid  and  comfort  in  the  realm  or  elsewhere",  he  should 
be  guilty  of  treason.     Marsh'all  said  that  it  is  not  enough  to 


150  Constitution  of  the  United  States 

be  leagued  in  a  conspiracy;  it  is  necessary  to  perform  a 
part.  That  part  may  be  minute,  and  it  may  not  be  actual 
appearance  in  arms,  but  it  must  be  a  part  of  the  plan  and 
must  be  performed  by  the  person  charged.  Notwith- 
standing the  great  efforts  of  the  Jefferson  administration 
to  secure  the  conviction  of  Burr,  the  jury  was  directed  by 
Marshall  to  return  a  verdict  of  not  guilty  because  the  testi- 
mony offered  by  the  Government  was  "irrelevant  until 
there  be  proof  of  the  overt  act  by  two  witnesses."  Burr 
had  been  charged  with  raising  troops  against  the  Govern- 
ment, but  no  proof  of  overt  acts  was  produced.  The  feeling 
ran  so  high  that  Marshall  was  hanged  in  effigy,  but  the 
search  of  historians  has  failed  to  find  evidence  sufficient 
under  this  section  to  convict  Burr  of  treason. 

Upon  our  entering  the  World  War  a  proclamation  was 
issued  (April  i6,  191 7)  by  President  Wilson  stating  the 
acts  which  had  been  held  to  be  within  the  Constitutional 
definition  of  treason,  and  warning  both  citizens  and  aliens 
not  to  do  them.    In  part  it  was  as  follows : 

"The  courts  of  the  United  States  have  stated  the  fol- 
lowing acts  to  be  treasonable : 

"The  use  or  attempted  use  of  any  force  or  violence 
against  the  Government  of  the  United  States,  or  its  mili- 
tary or  naval  forces ; 

"The  acquisition,  use  or  disposal  of  any  property  with 
knowledge  that  it  is  to  be,  or  with  intent  that  it  shall  be, 
of  assistance  to  the  enemy  in  their  hostilities  against  the 
United  States ; 

"The  performance  of  any  act  or  the  publication  of  state- 
ments or  information  which  will  give  or  supply  in  any  way, 
aid  and  comfort  to  the  enemies  of  the  United  States; 

"The  direction,  aiding,  counseling,  or  countenancing  of 
any  of  the  foregoing  acts ; 

"Such  acts  are  held  to  be  treasonable  whether  committed 
within  the  United  States  or  elsewhere ;  whether  committed 
by  a  citizen  of  the  United  States,  or  by  an  aHen  domi' 


Its  Sources  and  Application  151 

or  residing,  in  the  United  States,  inasmuch  as  resident 
aliens,  as  well  as  citizens,  owe  allegiance  to  the  United  States 
and  its  laws/' 

There  may  be  treason  against  a  State  under  its  consti- 
tution or  laws,  which  the  State  may  punish.  Thus  John 
Brown  was  executed  by  the  State  of  Virginia  for  treason 
committed  by  his  attack  upon  the  State  arsenal  at  Harper's 
Ferry. 

No  Person  shall  be  convicted  of  Treason  unless  on 
the  Testimony  of  two  Witnesses  to  the  same  overt 
Act,^^^  or  on  Confession  in  open  Court. 

^^^  Referring  to  the  execution  of  Sir  Walter  Raleigh  (1618) 
for  high  treason,  under  a  sentence  passed  fifteen  years  be- 
fore, which  "stained  the  reign  of  James  I",  Hallam  says: 
"His  conviction  was  obtained  on  the  single  deposition 
[written  testimony]  of  the  Lord  Cobham,  an  accomplice, 
a  prisoner,  not  examined  in  court,  and  known  to  have  al- 
ready retracted  his  accusation."  Hallam  states  that  while 
some  contended  "that  less  than  two  witnesses  ought  not 
to  be  received  in  a  case  of  treason",  it  is  doubtful  whether 
any  one  had  been  allowed  the  benefit  of  that  contention. 
Two  witnesses  to  the  same  act  are  required  by  our  Con- 
stitution, and  of  course  the  accused  must  be  (Sixth  Amend- 
ment, Note  155)  "confronted  with  the  witnesses  against 
him."  The  written  statement  of  one  absentee,  such  as 
lost  Raleigh  his  life,  will  not  do  in  the  United  States.  The 
"overt  act"  is  one  which  discloses  a  purpose  to  levy  war 
or  to  aid  the  enemy. 

In  the  eleventh  year  of  Queen  Victoria  (1848)  the  Trea- 
son-Felony Act  of  Parliament  reduced  the  number  of  trea- 
sons and  fixed  penal  servitude  instead  of  death  as  punish- 
ment in  many  cases. 

The  Congress  shall  have  Power  to  declare  the  Pun- 
ishment of  Treason,^^^ 


152  Constitution  of  the  United  States 

"^  In  1790  Congress  prescribed  death  by  hanging  as  the 
punishment  of  treason.  In  1862  Congress  enacted  that 
treason  be  punishable  by  death  and  the  liberation  of  the 
traitor's  slaves,  or  by  imprisonment  of  not  less  than  five 
years  and  a  fine  of  not  less  than  $10,000  and  the  Kberation 
of  slaves.  The  punishment  now  is  death,  or  imprison- 
ment and  fine,  with  the  loss  of  right  to  hold  office  under 
the  United  States. 

but  no  Attainder  of  Treason  shall  work  Corruption 
of  Blood,  or  Forfeiture  except  during  the  Life  of  the 
Person  attainted.^^® 

"^  Congress  ran  counter  to  this  limitation  during  the 
Civil  War.  It  passed  (July  17,  1862)  an  act  ''to  suppress 
insurrection,  to  punish  treason  and  rebelHon,  to  seize  and 
confiscate  the  property  of  rebels",  and  for  some  other  pur- 
poses, which  was  called  the  Confiscation  Act.  To  insure 
the  speedy  termination  of  the  war  it  was  made  the  duty  of 
the  President  to  seize  the  property  and  money  of  officers 
of  the  Confederate  army  and  of  the  president  and  other  offi- 
cials of  the  Confederate  States. 

President  Lincoln  had  prepared  a  draft  of  a  message 
objecting  to  this  Act  as  violative  of  this  clause.  But  be- 
fore it  was  presented  to  Congress  a  joint  resolution  was 
passed  to  the  effect  that  the  Act  ''  shall  be  so  construed  as 
not  ...  to  work  a  forfeiture  of  the  real  estate  of  the  of- 
fender beyond  his  natural  life."  In  view  of  the  resolution 
President  Lincoln  signed  the  bill  and  it  became  a  law.  Not- 
withstanding the  resolution,  purchasers  of  real  estate  under 
the  Confiscation  Act  claimed  full  title.  In  one  of  the  first 
cases  to  reach  the  Supreme  Court,  reference  was  made  to 
the  qualifying  resolution  by  Congress,  and  it  was  said  that 
had  Congress  undertaken  to  convey  title  beyond  the  life 
of  the  offender,  ''it  would  have  transcended  its  juris- 
diction." Where  the  property  of  a  Confederate  general 
had  been  seized  and  sold  and  he  left  a  son  as  heir,  the  Su- 


Its  Sources  and  Application  153 

preme  Court  held  that  under  this  clause  the  purchaser  could 
take  no  interest  beyond  the  lifetime  of  the  original  owner, 
upon  whose  death  the  son  had  legal  title  to  the  land.  Sev- 
eral cases  of  this  kind  arose  and  the  decisions  were  uni- 
formly as  stated  —  that  the  purchaser  of  property  under 
the  Confiscation  Act  could  acquire  an  interest  only  during 
the  Hfe  of  the  ojBfender,  punishment  for  whose  offence  could 
not  be  visited  upon  his  children. 


THE  SUPREME  COURT  OF  THE  CIVH.  WAR 

1 86 1  (Three  vacancies) 

Roger  B.  Taney,  Chief  Justice  Maryland 

(died  1864) 

James  M.  Wayne  Georgia 

John  Catron  Tennessee 

Samuel  Nelson  New  York 

Robert  C.  Grier  Pennsylvania 

Nathan  Clifford  Maine 

1862  (Appointees  of  Lincoln) 

Noah  H.  Swayne  Ohio 

Samuel  F.  Miller  Iowa 

David  Davis  Illinois 

1863  Stephen  J.  Field  California 

1864  Salmon  P.  Chase,  Chief  Justice  Ohio 
When  President  Lincoln  took  office  there  were  three 

vacancies  on  the  Supreme  Court,  owing  to  the  resignation 
(1861)  of  Justice  Campbell  of  Louisiana  and  the  deaths 
of  Justice  Daniel  of  Virginia  and  Justice  McLean  of  Ohio. 
He  filled  those  places. 

In  1862  prize  cases  were  brought  before  the  Court  by 
persons  whose  goods  or  ships  had  been  seized  during  the 
blockade  of  southern  ports  which  the  President  had  pro- 
claimed on  April  19,  1861.  Those  cases  showed  at  once 
the  vast  jurisdiction  (Note  loi)  of  the  court  and  the  right 
of  the  smallest  to  seek  redress  and  be  heard.  It  was  de- 
cided that  while  Congress  alone  can  declare  war  (Note  55), 
civil  war  becomes  a  fact  which  the  President  may  recognize 
and  take  steps  to  suppress  under  his  duty  to  execute  the 
law  (Note  96),  although  Congress  be  not  in  session.  That 
decision  for  the  preservation  of  the  Union  was  made  pos- 
sible by  the  concurrence  of  Justice  Wayne  of  Georgia,  whose 


State  had  seceded ;  for  four  justices  (Taney,  Nelson,  Clif- 
ford, and  Catron)  dissented  in  the  belief  that  the  President 
was  powerless  to  do  anything  until  Congress  should  convene 
and  make  a  declaration  of  war.  The  great  struggle  was 
prolific  of  questions  of  National  power.  But  the  Supreme 
Court  held  steadily  for  the  Union.  From  time  to  time  it 
decided :  (i)  that  the  authority  to  suppress  the  Confederacy 
is  found  in  the  clauses  for  carrying  on  war  and  suppressing 
insurrection ;  (2)  that,  apart  from  those  clauses,  the  sover- 
eign may  defend  itself ;  (3)  that  persons  in  arms  may  be 
treated  as  public  enemies  and  that  their  property  may  be 
confiscated ;  (4)  that  the  power  of  the  Legislative  Depart- 
ment to  reconstruct  the  southern  States  was  found  in  the 
guarantee  (Note  127)  of  a  repubHcan  form  of  government 
to  every  State;  (5)  that  the  ordinances  of  secession  from 
the  Union  were  void ;  (6)  that  the  judgments  of  Confederate 
courts  were  void  except  so  far  as  public  policy  and  justice 
required  otherwise;  and  (7)  that  the  civil  power  and  the 
courts  were  supreme  over  military  authority  and  military 
courts  in  all  places  not  within  the  immediate  theatre  of 
war. 


ARTICLE  IV 

Section  i.  Full  Faith  and  Credit  shall  be  given  in 
each  State  to  the  public  Acts,  Records,  and  judicial 
Proceedings  of  every  other  State.^^^ 

^^^This  is  a  command  to  the  States  which  they  must 
obey.  It  is  another  of  the  nationalizing  clauses  of  the  Cpn^ 
stitution.  ^'The  pubHc  acts  [that  is,  the  laws],  records 
and  judicial  proceedings"  (judgments  and  decrees  of 
courts)  of  one  State  must  be  given  in  every  other  State  ^'  the 
force  and  effect  to  which"  they  are  *' entitled  in  the  State 
where  rendered."  Thus  a  copy  (properly  authenticated 
or  proved)  of  a  judgment  against  a  man  for  money,  ob- 
tained in  a  court  of  the  State  of  New  York,  may  be 
presented  to  a  court  in  California  (the  defendant  having 
moved  to  the  latter  State,  perhaps  to  escape  the  obligation) 
and  a  judgment  will  be  there  entered  against  him  and  en- 
forced as  it  would  have  been  in  New  York  had  he  remained 
there.  It  is  not  necessary  again  to  bear  the  trouble  and 
expense  of  bringing  witnesses  and  proving  a  case. 

Substantially  the  same  language  was  in  a  resolution 
passed  in  1777  by  the  Continental  Congress,  and  it  reap- 
peared in  the  Articles  of  Confederation. 
^4 The  first  Congress  under  the  Constitution  passed  an  act 
(May  26,  1790)  to  effectuate  this  clause  by  prescribing 
how  records  should  be  authenticated  and  declaring  that 
they  should  have  such  faith  and  credit  in  every  State  as 
they  had  in  the  State  from  which  they  were  taken. 

Full  faith  and  credit  was  held  by  the  Supreme  Court  of 
the  United  States  (1903)  not  to  have  been  denied  by  the 


Its  Sources  and  Application  157 

courts  of  Massachusetts  in  permitting  the  first  wife  of  a 
man,  rather  than  the  second,  to  administer  his  estate  upon 
his  death,  as  the  law  of  Massachusetts  made  invalid  in  that 
State  a  divorce  which  he  went  to  South  Dakota  to  procure. 
Full  faith  and  credit  did  not  require  that  a  decree  of  divorce 
granted  "in  South  Dakota  should  be  respected  and  made 
operative  against  the  pubHc  policy  of  Massachusetts. 

And  the  Congress  may  by  general  Laws  prescribe  the 
Manner  in  which  such  Acts,  Records  and  Proceed- 
ings shall  be  proved,  and  the  Effect  thereof.^^* 

"^Thus  an  Act  of  Congress  provides  that  an  act  of  a 
legislative  body  is  authenticated  for  use  in  another  State 
*'by  having  the  seal  of  such  Territory,  State,  or  country 
afl&xed  thereto."  A  copy  of  a  judgment  or  decree  of  court 
rendered  in  any  State  ''shall  be  proved  or  admitted  in  any 
other  court  within  the  United  States  by  the  attestation 
of  the  clerk  and  the  seal  of  the  court  annexed,  if  there  be 
a  seal,  together  with  a  certificate  of  the  judge  .  .  .  that 
the  said  attestation  is  in  due  form." 

Section  2.  The  Citizens  of  each  State  shall  be  en- 
titled to  all  Privileges  and  Immunities  of  Citizens  in 
the  several  States.^^^ 

119  Provisions  of  this  kind  were  in  the  colonial  charters. 
The  colonists  of  Virginia,  for  example,  who  received  (1606) 
the  first  charter  from  the  English  sovereign,  were  by  that 
writing  guaranteed  ''all  liberties,  franchises  and  immunities 
within  any  of  our  dominions  to  all  intents  and  purposes  as 
if  they  had  been  abiding  and  born  within  this  our  realm  of 
England." 

"The  better  to  secure  and  perpetuate  mutual  friendship 
and  intercourse  among  the  people  of  the  different  States 
in  this  Union,"  ran  the  Articles  of  Confederation,  "the  free 


158  Constitution  of  the  United  States 

inhabitants  of  each  of  these  States  (paupers,  vagabonds 
and  fugitives  from  justice  excepted)  shall  be  entitled  to  all 
the  privileges  and  immunities  of  free  citizens  in  the  several 
States." 

A  citizen  of  one  State  going  to  or  transacting  business 
in  another  is  entitled  in  the  latter  State  to  the  privileges 
and  immunities  enjoyed  by  its  citizens.  The  State  cannot 
legislate  against  hun  or  otherwise  disfavor  him.  The  in- 
tent was  that  the  citizen  of  one  State  should  not  be  an  alien 
in  another.  In  any  State  he  has  the  protection  of  the 
government  of  that  State,  the  enjoyment  of  Hfe  and  liberty 
with  the  right  to  acquire  and  possess  property,  the  right 
to  pursue  and  obtain  happiness,  to  institute  actions  in  court, 
and  generally  to  possess  what  the  citizen  of  the  State  pos- 
sesses. Numerous  cases  have  arisen  under  this  clause  where 
States  have  attempted  to  favor  their  own  citizens  to  the 
prejudice  of  the  citizens  of  other  States.  Such  laws  are 
void  for  conflict  with  this  clause. 

After  the  Negro  was  emancipated  there  was  adopted 
the  Fourteenth  Amendment  (1868),  one  of  the  provisions 
of  which  (Note  172)  is  that  ^'no  State  shall  .  .  .  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States."  Thus,  putting  the  two  clauses  together,  the  State 
is  forbidden  to  abridge  the  privileges  and  immunities  of 
(i)  the  citizen  of  another  State,  and  of  (2)  the  citizen  of 
the  United  States.  For  there  are  two  citizenships  and  two 
loyalties. 

A  State  cannot  take  away  the  right  of  citizens  of  other 
States  to  sue  in  the  Federal  courts  of  that  State.  This 
clause  was  held  not  to  warrant  an  act  of  Congress  pre- 
scribing punishment  of  persons  for  conspiring  to  deprive 
others  (liberated  Negroes)  of  equal  privileges  or  immunities, 
as  the  guaranty  of  the  Constitution  is  against  wrongs  done 
by  States  and  not  by  persons.  Wrongs  done  in  a  State  by 
persons  must  be  dealt  with  by  the  State  in  the  exercise  of 
its  police  power,  and  not  by  the  Nation. 


Its  Sources  and  Application  159 

A  Person  charged  in  any  State  with  Treason,  Fel- 
ony, or  other  Crime,  who  shall  flee  from  Justice, 
and  be  found  in  another  State,  shall  on  demand  of  the 
executive  Authority  of  the  State  from  which  he  fled, 
be  delivered  up,  to  be  removed  to  the  State  having 
Jurisdiction  of  the  Crime.^20 

^2°  This  returning  of  a  fugitive  charged  with  crime  to 
the  place  of  his  misdeed  for  trial  is  called  interstate  extra- 
dition. International  extradition  was  probably  aided  in 
development  by  the  practical  operation  of  this  clause.  It 
was  more  than  half  a  century  after  it  was  written  in  1787 
that  England  entered  into  a  treaty  of  extradition  (1842) 
with  the  United  States.  This  was  followed  from  time  to 
time  by  treaties  among  leading  countries.  Previously  to 
those  treaties  a  fugitive  too  often  found  safety  in  a  foreign 
country,  although  sometimes  a  government  would  surrender 
a  fugitive  as  a  matter  of  courtesy.  Thus  Spain  delivered 
to  the  United  States  for  trial  a  fugitive  who  had  been 
indicted  (18  71)  for  taking  the  funds  of  the  City  of 
New  York. 

The  *' shall  ...  be  delivered  up"  in  this  clause  is  not 
mandatory.  Congress  has  provided  no  remedy  should  a 
State  refuse  to  deliver,  and  there  have  been  many  instances 
of  refusal  where,  in  the  opinion  of  the  Governor,  substan- 
tial justice  did  not  require  surrender.  The  Governor  of 
Ohio  refused  (i860)  to  deliver  to  Kentucky  a  man  charged 
with  aiding  the  escape  of  a  slave,  and  the  Supreme  Court 
of  the  United  States  held  that  the  Act  of  Congress  of  1793, 
passed  under  this  clause,  declaring  it  to  be  the  duty  of  a 
State  to  deliver  upon  a  sufficient  showing,  was  not  man- 
datory. Therefore,  a  Federal  court  would  not  issue  a  man- 
date to  compel  the  governor  to  obey. 

The  State  will  not  deliver  the  fugitive  until  it  has  ex- 
amined the  record  against  the*  accused  and  found  it  regular 
and  legal.    If  it  appears  that  the  proceeding  was  brought 


160  Constitution  of  the  United  States 

to  force  a  settlement  of  a  private  demand,  or  to  bring  back 
the  accused  to  be  tried  on  some  other  charge,  or  otherwise 
to  misuse  legal  writ  or  process,  the  application  will  be  denied. 
And  even  after  the  State  has  determined  to  surrender  the 
fugitive,  he  may  secure,  by  the  writ  of  habeas  corpus,  a 
hearing  in  court  as  to  whether,  on  the  record  exhibited 
against  him,  he  is  legally  restrained  of  his  liberty. 

One  who  while  a  fugitive  commits  an  offence  against 
the  laws  of  the  asylum  State  must  stand  trial  there  before 
being  surrendered,  and  if  convicted  must  serve  sentence. 
To  be  a  fugitive  within  the  meaning  of  this  clause  it  is 
enough  to  have  left  the  demanding  State  after  having  com- 
mitted a  crime.  One  who  goes  into  another  State  and  com- 
mits a  crime  and  then  returns  home  is  a  fugitive.  To  be 
"charged"  with  crime  within  the  language  of  the  clause 
so  as  to  warrant  extradition  one  must  be  accused  by  a  per- 
son having  knowledge  of  the  offence  and  stating  it  under 
oath ;  or  if  he  has  been  convicted  in  the  demanding  State, 
then  a  record  of  the  trial  must  be  submitted  to  the  Gov- 
ernor of  the  asylum  State. 

It  is  the  duty  of  the  Federal  courts  to  see  that  this  power 
be  not  extended  to  fields  and  exercised  in  classes  of  cases 
not  clearly  within  the  Constitution. 

The  "felony  or  other  crime"  of  this  clause  includes  any 
indictable  offence  under  the  present  laws  of  the  demanding 
State  —  that  is,  it  is  not  limited  to  the  offences  known  to 
the  common  law  at  the  time  the  Constitution  was  adopted. 

The  governor  of  the  asylum  State  should  not  attempt 
to  pass  upon  the  guilt  of  the  accused  —  it  is  enough  to  de- 
termine that  an  extraditable  offence  has  been  regularly 
charged. 

The  international  rule  of  treaty,  that  a  fugitive  sur- 
rendered by  a  foreign  country  cannot,  on  being  taken  home, 
be  tried  for  an  offence  not  embraced  in  the  demand,  does 
not  generally  apply  to  interstate  extraditions  under  this 
clause,  although  some  of  the  States  follow  that  rule. 


Its  Sources  and  Application  161 

Where  a  criminal  who  had  fled  to  another  State  was  taken 
back  forcibly  without  extradition  papers,  the  Supreme 
Court  of  the  United  States  held  that  the  governor  of  the 
asylum  State  had  no  authority  under  the  Constitution  to 
demand  his  return,  a  fugitive  having  no  right  to  asylum  in 
any  State. 

A  person  may  be  arrested  and  detained  for  a  reasonable 
time  by  the  asylum  State  in  order  that  the  other  State  may 
prepare  papers  and  make  a  demand. 

No  Person  held  to  Service  or  Labor  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall, 
in  Consequence  of  any  Law  or  Regulation  therein,  be 
discharged  from  such  Service  or  Labor,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such  Ser- 
vice or  labor  may  be  due.^^^ 

^^^  This  is  the  last  of  the  three  (Notes  ii  and  6i)  com- 
promises respecting  slavery.  Time  has  made  it  obsolete. 
It  related  to  the  fugitive  slave.  It  was  designed  to  over- 
come the  decision  (1772)  of  Lord  Mansfield,  Chief  Justice 
of  the  King's  Bench,  fifteen  years  before  in  the  celebrated 
case  of  the  Negro,  Somerset,  that  a  slave  brought  by  his 
master  from  Virginia  to  England  became  free.  This  was 
held  notwithstanding  that  slavery  was  common  then  in 
the  English  colonies  and  that  traffic  in  slaves  was  one  of 
the  foremost  of  EngHsh  activities  in  trade.  To  apply  that 
principle  in  America  would  liberate  the  slave  who  might 
flee  to  a  northern  State.  Therefore  this  protecting  clause 
was  necessary  to  secure  from  the  slave-holding  States  their 
ratification  of  the  Constitution. 

In  1793  Congress  effectuated  this  clause  by  *'An  Act 
respecting  fugitives  from  justice  and  persons  escaping  from 
the  service  of  their  masters."  In  1850,  when  the  rumblings 
of  the  coming  Civil  War  were  rising.  Congress  passed 
another  Fugitive  Slave  Law  inquiring,  among  many  things, 


162  Constitution  of  the  United  States 

''all  good  citizens"  to  "aid  in  the  prompt  and  efl&cient  ex- 
ecution of  this  law",  and  authorizing  officers  ''to  summon 
and  call  to  their  aid  the  bystanders."  In  a  case  arising  in 
Wisconsin,  in  which  a  man  was  charged  with  aiding  in  the 
escape  of  a  fugitive  slave  in  violation  of  this  Act,  it  was 
held  (1858)  by  the  Supreme  Court  that  under  this  clause 
Congress  had  authority  to  enact  the  Fugitive  Slave  Law. 

"I  say  that  the  South  has  been  injured  in  this  respect," 
said  Daniel  Webster  of  Massachusetts  in  the  Senate  in 
1850,  "and  has  a  right  to  complain;  and  the  North  has 
been  too  careless  of  what  I  think  the  Constitution  peremp- 
torily and  emphatically  enjoins  upon  her  as  a  duty." 

Many  northern  States  enacted  laws  to  aid  the  fugitive 
slave.  Although  the  Ordinance  of  the  Congress  under 
the  Articles  of  Confederation  creating  the  Northwest  Ter- 
ritory—  reenacted  by  the  first  Congress  (August  7,  1789) 
under  the  Constitution  —  forbade  slavery,  it  nevertheless 
provided  for  the  return  of  fugitive  slaves  to  their  owners. 

Section  3.  New  States  may  be  admitted  by  the 
Congress  into  this  Union ;  ^22 

122  Even  before  the  Constitution,  provision  was  made 
for  the  admission  of  new  States.  The  Ordinance  (1787) 
of  the  Congress  under  the  Articles  of  Confederation  which 
created  the  Northwest  Territory  provided  for  a  temporary 
government  until  the  population  should  reach  five  thousand, 
when  a  representative  would  be  admitted  to  Congress; 
and  when  the  population  should  reach  sixty  thousand  a 
State  would  be  admitted  to  remain  in  the  Union  forever, 
upholding  a  repubUcan  form  of  government,  and  prohibit- 
ing slavery.  The  Articles  of  Confederation  provided 
(Art.  XI)  that  "Canada,  acceding  to  this  Confederation, 
and  joining  in  the  measures  of  the  United  States,  shall  be 
admitted  into  and  entitled  to  all  the  advantages  of  this 
Union;  but  no  other  colony  shall  be  admitted  into  the 
same  unless  such  admission  be  agreed  to  by  nine  States." 


Its  Sources  and  Application  163 

For  nearly  four  years  (November  17,  1777,  to  March  i, 
1 781)  the  adoption  of  the  Articles  of  Confederation  was 
delayed  by  a  dispute  over  the  lands  lying  west  of  the  orig- 
inal colonies.  The  grants  from  the  crown  had  extended 
to  the  west  indefinitely.  They  were  intercepted  at  the 
Mississippi  by  claims  to  that  valley  based  on  French  ex- 
plorations. Thus  Virginia  claimed  what  afterward  became 
West  Virginia,  Kentucky,  Missouri,  the  greater  part  of 
Ohio,  Indiana,  and  Illinois,  and  part  of  northern  Michigan, 
Wisconsin,  and  Minnesota.  Jumping  across  eastern  New 
York  to  Oswego  and  a  Hne  thence  south,  Massachusetts 
claimed  western  New  York  and  what  later  became  the 
lower  half  of  Michigan  and  the  lower  half  of  Wisconsin. 
Connecticut  claimed  what  is  now  the  northern  part  of 
Ohio,  Indiana,  and  IlHnois.  North  CaroHna,  South  Caro- 
hna,  and  Georgia  extended  to  the  Mississippi.  Some  of  the 
landless  States,  notably  Maryland,  contended  that  as  those 
lands  had  been  wrested  from  EngUsh  dominion  by  com- 
mon endeavor  and  sacrifice,  they  should  become  the  prop- 
erty of  the  Union  and  not  go  to  the  enrichment  of  a  few 
States.  They  finally  carried  their  point.  New  York,  which 
claimed  but  Httle,  and  Virginia,  with  a  vast  area,  led  the 
way  (1781)  by  ceding  their  lands,  and  the  others  followed. 
Immediately  Maryland,  which  had  blocked  the  way,  rati- 
fied the  Articles  of  Confederation  and  they  went  into  oper- 
ation as  successor  to  the  provisional  government  main- 
tained by  the  Continental  Congress.  That  Congress  had 
promised  by  resolution  the  year  before  (October  10,  1780) 
that  lands  which  might  be  ceded  to  the  Union  by  the  State 
would  be  *' disposed  of  for  the  common  benefit  of  the  United 
States",  and  also  that  they  would  be  *' settled  and  formed 
into  distinct  repubhcan  States  which  shall  become  members 
of  the  Federal  Union." 

Later  (1803),  by  the  Louisiana  Purchase  from  Napoleon 
of  France,  the  vast  territory  between  the  Mississippi  and 
the  Rocky  Mountains  was  added  by  President  Jefferson 


164  Constitution  of  the  United  States 

to  the  domain.  In  1819  Florida  was  secured  by  President 
Monroe  from  Spain.  Texas  was  admitted  (1845)  i^  the 
term  of  President  Polk.  The  war  with  Mexico  (1846-1847) 
was  followed  by  the  purchase  from  that  country  by  Pres- 
ident Polk  of  the  region  west  of  the  Rocky  Mountains  for 
$15,000,000  in  cash  and  the  assumption  by  the  United  States 
of  all  debts  owing  from  the  Mexican  Government  to  Amer- 
ican citizens,  not  to  exceed  $3,500,000.  In  1867  Alaska 
was  purchased  of  Russia  for  $7,200,000  by  President  John- 
son, and  following  the  war  with  Spain  (1898)  Porto  Rico 
and  the  PhiHppines  came  under  the  dominion  of  the  United 
States  during  the  term  of  President  McKinley. 

Usually  the  people  of  a  Territory  have  adopted  a  con- 
stitution and  submitted  it  to  Congress  for  approval.  When 
all  conditions  have  been  satisfactory  Congress  has  passed 
an  act  admitting  the  Territory  as  a  State.  The  admission 
of  Utah  was  once  denied  because  of  local  religious  customs. 
Many  conditions  were  imposed  by  Congress  after  the  Civil 
War  upon  the  right  of  returning  States  to  representation 
in  Congress,  such  as  the  repudiation  of  the  debt  of  the 
Confederacy,  and  the  permission  of  the  Negro  to  vote. 

but  no  new  State  shall  be  formed  or  erected  within 
the  Jurisdiction  of  any  other  State ;  ^^3 

^^^  But  in  the  case  of  what  is  now  West  Virginia,  the 
people  of  which  remained  loyal  during  the  Civil  War,  Con- 
gress decided  that  the  part  remaining  loyal  ^' might  main- 
tain a  loyal  State  for  the  government  of  the  whole  State", 
and  that  that  government  could  give  its  consent  to  the 
erection  of  a  new  State  within  the  Hmits  of  the  old,  which 
was  done. 

The  territory  of  Vermont,  the  first  State  to  be  admitted 
into  the  Union  (March  4,  1791),  was  claimed  by  both  New 
York  and  New  Hampshire;  but  as  the  claim  was  never 
maintained  by  either  State,  the  admission  of  Vermont 
was  not  the  erection  of  a  new  State  "within  the  jurisdic- 


(Its  Sources  and  Application  165 

tion  of  any  other  State  ",  prohibited  by  the  foregoing 
clause. 

The  joint  resolution  of  Congress  (March  i,  1845)  "for 
annexing  Texas  to  the   United    States"  authorized  the 
creation  of  "new  States,  of  convenient  size,  not  exceeding 
„  four  in  number,  in  addition  to  said  State  of  Texas." 

nor  any  State  be  formed  by  the  Junction  of  two  or 
more  States,  or  parts  of  States,  without  the  Consent 
of  the  Legislatures  of  the  States  concerned  as  well  as 
of  the  Congress.124 

^24* 'The  particular  precaution  against  the  erection  of 
new  States  by  the  partition  of  a  State  without  its  consent," 
wrote  Alexander  Hamilton,  '^  quiets  the  jealousy  of  the 
larger  States,  as  that  of  the  smaller  is  quieted  by  a  Hke  pre- 
caution against  a  junction  of  States  without  their  consent." 

The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respect- 
ing the  Territory  or  other  Property  belonging  to  the 
United  States;  125 

^^^  Under  this  power  Congress  has  erected  Territories 
out  of  the  pubHc  domain,  provided  for  the  government 
of  them  (usually  by  an  elective  legislature  and  an  ap- 
pointive executive  and  judiciary)  until  they  were  ready  for 
statehood,  and  admitted  them  to  the  Union  upon  their  pre- 
senting satisfactory  constitutions  for  a  republican  form  of 
government.  Many  Territories  so  governed  grew  popu- 
lous and  prosperous.  Indeed,  the  opinion  has  been  ex- 
pressed by  many  residents  of  Territories  that  the  territorial 
form  of  government  is  less  expensive  than  that  of  a  State 
and  otherwise  preferable  to  it.  Part  of  the  expenses  of 
a  Territorial  government  are  paid  by  the  National  treas- 
ury. But  as  the  governor  ajid  the  other  executive  officers 
are  appointed  by  the  President  and  the  people  have  no  vote 


166  Constitution  of  the  United  States 

in  National  elections,  the  desire  for  home  rule  and  parti- 
cipation in  National  affairs  has  outweighed  all  such  bene- 
fits of  Territorial  government. 

and  nothing  in  this  Constitution  shall  be  so  construed 
as  to  Prejudice  any  Claims  of  the  United  States,  or  of 
any  particular  State.^^^ 

126  <'Xhe  proviso  annexed  is  proper  in  itself/'  wrote  Madi- 
son, *'and  was  probably  rendered  absolutely  necessary  by 
jealousies  and  questions  concerning  the  western  territory 
sufficiently  known  to  the  public."  At  the  time  the  Con- 
stitution was  drafted,  North  CaroHna  and  Georgia  had  not 
ceded  to  the  Nation  their  western  lands. 

Section  4.  The  United  States  shall  guarantee  to 
every  State  in  this  Union  a  Republican  Form  of 
Government,i27  qj^^  gj^^^  protect  each  of  them  against 
Invasion ; 

127  ''In  the  light  of  the  undoubted  fact  that  by  the  Rev- 
olution it  was  expected  and  intended  to  throw  off  mon- 
archical and  aristocratic  forms,"  says  Cooley  ("Principles 
of  Constitutional  Law"),  "there  could  be  no  question  but 
that  by  a  republican  form  of  government  was  intended 
a  government  in  which  not  only  would  the  people's  repre- 
sentatives make  the  laws  and  their  agents  administer  them, 
but  the  people  would  also  directly  or  indirectly  choose  the 
executive." 

This  clause  requires  the  Nation  to  protect  the  State  from 
invasion  by  a  foreign  power,  and  also  from  domestic  insur- 
rection (Note  57),  like  the  Dorr  Rebellion,  in  Rhode  Island, 
when  the  President  announced  that  should  it  be  necessary 
he  would  support  the  older  government. 

What  is  a  republican  form  of  government  or  whether 
one  exists  in  a  State  is  determinable  by  the  political  power 
(legislative)  of  the  United  States  and  not  by  the  judicial. 
This  question  arose  out  of  the  Dorr  Rebellion  (1842), 


Its  Sources  and  Application  167 

when  persons  in  the  miUtary  service  of  the  State  broke 
into  and  searched  the  rooms  of  persons  who  were  in  insur- 
rection. In  an  action  for  damages  brought  by  persons 
whose  rooms  had  been  entered,  the  defendants  justified 
on  the  ground  that  as  officers  of  the  State  they  were  help- 
ing it  defend  itself  from  insurrection  under  the  declara- 
tion by  it  of  martial  law.  The  plaintiff  rejoined  that  the 
former  State  government  ''had  been  displaced  and  annulled 
by  the  people  of  Rhode  Island"  and  that  the  persons  who 
were  said  to  be  in  insurrection  and  whose  houses  were  broken 
into  were  in  fact  "engaged  in  supporting  the  lawful  au- 
thority of  the  State."  In  a  decision  written  by  Chief  Jus- 
tice Taney  in  1848  it  was  said  that  in  forming  the  con- 
stitutions of  the  different  States  after  the  Declaration  of 
Independence,  and  in  the  various  changes  and  alterations 
which  had  since  been  made,  ''the  political  department  has 
always  determined  whether  the  proposed  constitution  or 
amendment  was  ratified  or  not  by  the  people  of  the  State, 
and  the  judicial  power  has  followed  its  decision." 

In  1867  the  State  of  Georgia  filed  a  bill  for  injunction 
in  the  Supreme  Court  of  the  United  States  against  Edwin 
M.  Stanton,  Secretary  of  War,  General  Grant,  and  Major 
General  Pope,  to  restrain  them  from  carrying  out  the  pro- 
visions of  the  Reconstruction  Acts  of  Congress  (Note  96) 
for  maintaining  order  in  the  southern  States  and  holding 
elections  for  the  adoption  of  new  constitutions.  The  bill 
for  injunction  recited  that  Major  General  Pope  had  been 
placed  in  command  of  the  mihtary  district  in  which  Georgia 
was  situated  for  the  purpose  of  carrying  out  these  Acts  of 
Congress,  although  at  the  close  of  the  war  military  forces 
had  been  withdrawn  and  the  civil  government  of  the  State 
had  been  revived  and  reorganized  with  the  consent  of  the 
President  as  Commander  in  Chief  of  the  army,  all  that  was 
lacking  for  complete  rehabihtation  being  representation  in 
the  Senate  and  the  House  of  Representatives.  The  Su- 
preme Court  dismissed  the'  bill  for  want  of  jurisdiction, 


168  Constitution  of  the  United  States 

saying  that  its  authority  related  to  ^Hhe  rights  of  persons 
or  property,  not  merely  political  rights,  which  do  not  be- 
long to  the  jurisdiction  of  a  court,  either  in  law  or  equity." 
In  191 2  a  tax-payer  in  Oregon  brought  this  question  again 
to  the  attention  of  the  Supreme  Court,  claiming  that  the 
amendment  of  1902  to  the  constitution  of  Oregon,  by  which 
the  people  reserved  to  themselves  the  right  to  propose 
amendments  to  the  Constitution  and  to  enact  or  reject  at 
the  polls  laws  or  amendments  independent  of  the  legislative 
assembly,  had  destroyed  the  repubHcan  form  of  government 
which  had  been  guaranteed  by  this  section  of  the  National 
Constitution.  It  was  contended  that  such  government  by 
the  people  directly  is  democracy  and  not  the  representative 
or  repubHcan  form  which  the  framers  of  the  Constitution 
had  in  mind.  The  Supreme  Court  said  that  the  questions 
presented  "have  long  since  by  this  court  been  definitely 
determined  to  be  poUtical  and  governmental  and  embraced 
within  the  scope  of  the  powers  conferred  upon  Congress, 
and  not  therefore  within  the  reach  of  the  judicial  power." 

and  on  Application  of  the  Legislature,  or  of  the  Execu- 
tive (when  the  Legislature  cannot  be  convened)  against 
domestic  Violence.^^^ 

^^^The  President  is  to  determine  when  "domestic 
violence"  warrants  his  sending  troops  to  a  State.  The 
Nation  will  not  act  as  a  poHceman.  Where  a  State  had  no 
militia  with  which  to  preserve  order  the  President  sent 
troops  upon  the  call  of  the  governor  (the  legislature  not 
being  in  session),  but  then  the  President  insisted  that  the 
legislature  must  sit  and  make  preparations  without  delay 
so  that  he  might  withdraw  the  troops.  During  the  dis- 
orders of  a  country-wide  railway  strike  in  1894,  which, 
in  Chicago,  interfered  with  the  transportation  of  United 
States  mail,  President  Cleveland  sent  troops  to  maintain 
order  not  only  without  the  request  of  the  Governor  of  Il- 
linois, but   also  against  his  protest.    Under  the  clause 


Its  Sources  and  Application  169 

(Note  51)  putting  post  offices  and  post  roads  in  the  care  of 
the  Nation  the  Federal  Government  could  take  any  steps 
necessary  anywhere  to  keep  the  post  roads  open. 

During  Dorr's  Rebellion  in  Rhode  Island  in  1842,  when 
two  rival  organizations  were  claiming  to  be  the  legal  govern- 
ment, Governor  King  of  the  older  government  called  upon 
President  Tyler  for  assistance.  The  President  said  that 
he  hoped  that  intervention  might  not  be  necessary  for  the 
restoration  of  order,  but  that  he  would  *'not  be  found  to 
shrink  from  the  performance  of  a  duty  which,  while  it  would 
be  the  most  painful,  is  at  the  same  time  the  most  impera- 
tive." As  between  the  contending  parties,  he  said  that 
it  would  be  his  duty  "to  respect  the  requisition  of  that 
government  which  had  been  recognized  as  the  existing 
government  of  the  State  through  all  time  past  until  I  shall 
be  advised,  in  regular  manner,  that  it  has  been  altered  and 
abolished  and  another  substituted  in  its  place  by  legal  and 
peaceable  proceedings."  That  declaration  virtually  ended 
the  rebelKon. 

In  the  Constitutional  Convention  there  was  much  dis- 
cussion and  revision  before  this  clause  was  finally  so  nicely 
balanced  between  National  and  State  authority. 


ARTICLE  V 

The  Congress,  whenever  two-thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments 
to  this  Constitution,  or,  on  the  Application  of  the  Leg- 
islatures of  two-thirds  of  the  several  States,  shall  call 
a  Convention  for  proposing  Amendments,  which,  in 
either  Case,  shall  be  valid  to  all  Intents  and  Purposes, 
as  part  of  this  Constitution,  when  ratified  by  the  Leg- 
islatures of  three-fourths  of  the  several  States,  or  by 
Conventions  in  three-fourths  thereof,  as  the  one  or 
the  other  Mode  of  Ratification  may  be  proposed  by 
the  Congress ;  ^^9 

^^^In  this  Article  there  is  prevented  for  the  future  one 
of  the  failures  in  practice  of  the  Articles  of  Confederation. 
They  provided  (Article  XIII)  that  no  alteration  at  any  time 
should  be  made  unless  agreed  to  in  the  Congress  of  the 
United  States  ''and  be  afterward  confirmed  by  the  legisla- 
ture of  enery  State."  Three  important  attempts  to  amend 
the  Articles  failed  on  account  of  that  provision  for 
unanimity.  Rhode  Island  alone  prevented  an  amend- 
ment by  which  the  Government  could  raise  money  on  im- 
port duties.  New  York  alone  defeated  another  amendment 
for  a  general  revenue  plan.  A  third  important  amend- 
ment thus  defeated  related  to  commerce.  The  framers 
of  our  Constitution  removed  that  obstacle. 

All  the  Amendments  to  the  Constitution  thus  far  adopted 
were  proposed  by  Congress  and  not  by  the  legislatures  of 
the  States ;  and  all  the  ratifications  have  been  by  the  legis- 
latures of  three  fourths  of  the  States  and  not  by  conventions 
iu  the  States.    The  Constitution  itself  was  ratified  (Note 


Its  Sources  and  Application  171 

137),  not  by  the  legislatures,  but  by  conventions  of  the 
people  in  the  States.  New  Jersey  ratified  the  Fourteenth 
Amendment  on  September  11,  1866,  and  attempted  on 
March  27, 1868,  to  rescind  its  action ;  and  in  January,  1868, 
Ohio  attempted  to  rescind  its  ratification  of  that  Amend- 
ment, which  was  given  on  January  11,  1867.  Secretary 
of  State  Seward  announced  the  ratification  of  the  Four- 
teenth Amendment  by  three  fourths  of  the  States,  and  men- 
tioned those  attempts  at  rescission.  Congress  thereupon 
passed  a  concurrent  resolution  that  the  ratifications  made 
the  Amendment  a  part  of  the  Constitution.  Oregon  tried 
to  withdraw  its  ratification  of  the  Fourteenth  Amendment 
after  its  adoption  had  been  proclaimed  by  the  Secretary  of 
State.  New  York  undertook  to  withdraw  its  ratification 
of  the  Fifteenth  Amendment.  The  governing  principle 
seems  to  be  that  when  the  legislature  took  the  step  of  rati- 
fying under  the  Constitution  it  exercised  its  constitutional 
authority,  exhausted  its  power  in  the  premises,  and  could 
do  nothing  further. 

In  1 91 9  the  Supreme  Judicial  Court  of  Maine,  in  answer 
to  a  question  propounded  by  the  Governor,  declared  that 
the  legislature  could  not  rescind  its  ratification  of  the  Eigh- 
teenth Amendment,  establishing  prohibition. 

In  1920,  in  six  cases,  arising  in  New  Jersey,  Rhode  Island, 
Massachusetts,  Kentucky,  Wisconsin,  and  Missouri  under 
the  Eighteenth  Amendment,  the  Supreme  Court  of  the  United 
States  held  that  the  referendum  provisions  in  the  consti- 
tutions of  some  States  cannot  be  applied  under  this 
article  to  the  ratification  or  rejection  of  amendments  —  the 
requirement  being  that  the  legislature,  or  a  convention, 
and  not  the  voters,  must  ratify  or  reject  an  Amendment. 

On  December  20,  i860,  South  CaroHna,  in  the  State  con- 
vention, repealed  or  withdrew  the  ratification  of  the  Con- 
stitution which  it  gave  in  1788  and  undertook  to  return  to 
its  former  status. 

Praising  our  Constitution  as  superior  to  that  of  England 


172  Constitution  of  the  United  States 

because  time  and  consideration  are  required  to  make  an 
amendment,  Lecky  (''Democracy  and  Liberty")  says  that 
*'an  appetite  for  organic  change  is  one  of  the  worst  dis- 
eases that  can  affect  a  nation." 

Fenet,  the  French  statesman,  in  making  a  report  for  the 
revision  of  the  law  of  France  and  the  adoption  of  a  civil 
code,  and  having  in  mind  the  failure  of  the  French  Revo- 
lution in  its  effort  to  take  leave  of  past  thought  and  achieve- 
ment and  to  set  up  a  new  social  and  governmental  system 
based  upon  supposedly  new  ideas,  gave  expression  to  this 
maxim,  which  should  not  be  forgotten :  ''It  is  better  to  pre- 
serve what  it  is  not  necessary  to  destroy." 

In  his  Farewell  Address  (1796),  caution  is  given  by  Wash- 
ington to  resist  "the  spirit  of  innovation"  upon  the  prin- 
ciples of  the  Constitution,  "however  specious  the  pretexts." 
He  said  that  "faciHty  in  changes  upon  the  credit  of  mere 
h3^othesis  and  opinion  exposes  to  perpetual  change  from 
the  endless  variety  of  hypothesis  and  opinion";  and  that 
in  any  event,  should  a  "modification  of  the  Constitutional 
powers"  be  necessary,  it  should  be  made  "by  an  amend- 
ment in  the  way  which  the  Constitution  designates." 

"But  let  there  be  no  change  by  usurpation,"  he  warned. 

Every  one  of  the  twelve  constitutions  of  France  adopted 
since  1789  has  been  made  difficult  to  amend.  To  illus- 
trate, one  provided  that  no  amendment  could  be  made  un- 
til three  successive  legislative  assembUes  should  have  ex- 
pressed the  wish  for  a  change  in  some  article. 

The  Parliament  of  AustraHa  can  alter  certain  articles, 
but  not  others.  The  Parhament  of  the  Dominion  of  Canada 
cannot  change  the  constitution,  which  is  alterable  by  the 
Parliament  of  England.  But  in  New  Zealand  almost  all 
the  articles  are  amendable  by  the  local  Parliament. 

In  the  Argentine  Republic,  which  followed  our  Consti- 
tution closely,  amendments  are  first  declared  by  a  two- 
thirds  vote  of  Congress  to  be  necessary,  and  then  the  sub- 
ject is  dealt  with  in  a  convention  for  the  purpose. 


Its  Sources  and  Application  173 

In  Brazil,  as  with  us,  amendments  may  be  initiated  by 
either  Congress  or  the  legislatures  of  the  States. 

From  time  to  time  Presidents  have  suggested  to  Con- 
gress the  propriety  of  proposing  amendments  to  the  Con- 
stitution. Jefferson,  who  had  questioned  the  constitu- 
tional power  to  make  the  purchase  of  Louisiana  in  1803, 
suggested  to  Congress  (1806)  that  an  amendment  be  pro- 
posed authorizing  the  spending  of  surplus  National  funds 
for  education  throughout  the  States,  for  the  construction 
of  roads,  the  opening  of  rivers  and  the  digging  of  canals. 
President  Monroe  suggested  (181 7)  the  propriety  of  an 
amendment  authorizing  the  estabhshment  of  seminaries 
throughout  the  land.  In  1829  President  Jackson  recom- 
mended an  amendment  permitting  the  distribution  of 
surplus  National  revenue  among  the  States  so  as  to  avoid 
what  he  considered  the  illegal  appropriation  of  public 
money  for  non-National  purposes.  On  December  3,  i860, 
the  month  after  Lincoln  was  elected.  President  Buchanan 
asked  Congress  to  propose  an  "explanatory  amendment" 
(i)  recognizing  property  in  slaves  where  they  then  were 
held  or  might  afterward  be  owned;  (2)  protecting  the 
right  of  slave  owners  to  hold  slaves  in  Territories,  the  right 
thereafter  to  be  determined  by  a  vote  of  the  people ;  and 
(3)  recognizing  the  right  of  an  owner  to  his  fugitive  slave 
and  declaring  all  State  laws  void  which  were  designed  to 
impair  or  defeat  his  rights.  In  1868  President  Johnson 
asked  Congress  to  propose  an  amendment  for  the  election 
of  the  President  by  the  direct  vote  of  the  people,  limiting 
his  term  to  six  years,  and  forbidding  reelection.  President 
Grant  desired  (1873)  an  amendment  authorizing  the  Presi- 
dent to  veto  any  item  of  a  bill  to  which  he  might  object 
without  negativing  the  whole  bill;  and  in  1882  President 
Arthur  made  a  like  request,  calling  the  attention  of  Con- 
gress to  the  fact  that  fourteen  States  had  at  that  time  made 
such  provision  for  the  veto  of  legislative  bills  by  their  gov- 
ernors.   President  Grant  al^  (1873)  requested  the  pro- 


174  Constitution  of  the  United  States 

posal  of  an  amendment  that  a  special  session  of  Congress 
be  forbidden  to  deal  with  any  subject  except  that  for  which 
it  had  been  specially  convoked. 

To  illustrate  how  closely  the  applicabihty  of  the  Con- 
stitution has  always  been  studied  it  may  be  mentioned 
that  from  April  to  November,  1921,  there  were  offered 
in  the  first  session  of  the  Sixty-seventh  Congress  twenty- 
five  resolutions  to  amend  it,  some  of  them  being  substan- 
tially repetitions  of  others.  One  was  for  making  the  term 
of  the  President  six  years  and  prohibiting  his  reelection ; 
another  would  authorize  him  to  veto  any  provision  of  a 
bill  and  approve  the  remaining  ones;  another  would  em- 
power Congress  to  regulate  the  employment  of  children 
under  sixteen  years  of  age  (see  Note  45) ;  another  would 
extend  the  word  *' elections"  in  the  Constitution  to  in- 
clude primaries  (see  Note  26) ;  another  would  submit  to 
a  vote  of  the  people  the  question  of  declaring  war  (Note  55) ; 
another  would  extend  the  constitutional  definition  of 
treason  (Note  113J  to  include  acts  of  injury  in  time  of 
war  to  the  military,  physical,  or  financial  resources  of  the 
United  States;  another  would  require  the  ratification  of 
an  Amendment  by  the  voters  of  the  country  to  the  ex- 
clusion of  the  legislatures  of  the  States ;  and  more  of  vari- 
ous kinds.  It  has  been  said  that  over  2000  amendments 
have  been  proposed  in  the  course  of  our  National  life. 

Provided  that  no  Amendment  which  may  be  made 
prior  to  the  Year  One  thousand  eight  hundred  and 
eight  shall  in  any  Manner  affect  the  first  and  fourth 
Clauses  [Notes  61  and  65]  in  the  Ninth  Section  of 
the  first  Article ;  ^^°  and  that  no   State,  without  its 

^^°  This  relates  to  slavery. 

Consent,  shall  be  deprived  of  its  equal  Suffrage  in 
the  Senate.^3^ 


Its  Sources  and  Application  175 

^^^  Once  more  the  small  State  is  guaranteed  against  being 
prejudiced  by  the  large  ones.  In  the  Brazilian  Constitution 
it  is  provided  that  bills  to  abolish  the  republican  federative 
form  of  government,  or  to  destroy  equality  of  representation 
in  the  Senate,  are  not  subjects  of  deliberation. 


f 


ARTICLE  VI 


All  Debts  contracted  and  Engagements  entered 
into,  before  the  Adoption  of  this  Constitution,  shall 
be  as  valid  against  the  United  States  under  this 
Constitution  as  under  the  Confederation.^^^ 

^^2  This  was  *'a  solemn  assurance  to  public  creditors 
and  to  the  world  that  the  public  faith  would  be  invio- 
lably kept  by  the  United  States  under  its  changed  govern- y 
ment." 

Hamilton  put  the  debt  of  the  Union  at  $11,710,378 
owing  in  foreign  countries  and  $42,414,085  of  domestic 
debt.    The  States  themselves  owed  $25,000,000,  makingl^ 
debts  in  the  aggregate  of  $79,000,000. 

The  credit  of  the  Colonies  had  sunk  so  low  during  the 
Revolution  that  had  it  not  been  for  bankers  in  Hollanc^ 
and  France  the  war  for  freedom  must  have  failed.  There- 
after the  young  States  issued  so  much  paper  money  and 
passed  so  many  laws  making  it  difficult  foi;  creditors  to 
collect  debts  that  it  was  considered  necessary  to  give  as- 
surance to  the  world  that  the  Nation  would  pay. 

In  like  manner  the  Dominion  of  Canada  assumed  in 
its  Constitution  (1867)  responsibiHty  for  existing  debts. 

This  Constitution,  and   the   Laws   of  the    United 
States  which  shall  be  made  in  Pursuance  thereof;* 
and  all  Treaties  made,  or  which  shall  be  made,  undei^ 
the  Authority  of  the  United  States,  shall  be  the  su»A 
preme  Law  of  the  Land ;  ^^^ 

^^^  This  means  that  the  Constitution  itself  is  a  law  which 
it  is  the  duty  of  the  courts  (State  as  well  as  National)  to 


Its  Sources  and  Application  177 

uphold  and  enforce  as  they  do  all  other  laws.     A  law  of 
Congress  to  be  one  of  the  supreme  laws  must  be  ^'mede 
in  pursuance  thereof"  and  not  in  conflict  with  the  Con- 
stitution.   When  not  made  in  pursuance  thereof  it  is  of  , 
course  unconstitutional  and  of  no  effect. 

"If  the  State  governments  had  not  been  restrained  from 
encroaching  on  the  powers  vested  in  the  National  Govern- 
ment," wrote  President  Monroe,  *'the  Constitution,  like 
the  Confederation,  would  soon  have  been  set  at  naught; 
and  it  was  not  within  the  limit  of  the  human  mind  to  de- 
vise any  plan  for  the  accomplishment  of  the  object  other 
than  by  making  a  National  Constitution  which  should 
be  to  the  extent  of  its  powers  the  supreme  law  of  the  land." 

"Legislators  have  their  authority  measured  by  the 
Constitution,"  says  Cooley;  "they  are  chosen  to  do  what 
it  permits,  and  nothing  more,  and  they  take  solemn  oath 
to  obey  and  support  it.  .  .  .  To  pass  an  act  when  they 
are  in  doubt  whether  it  does  not  violate  the  Constitution 
is  to  treat  as  of  no  force  the  most  imperative  obligations 
any  person  can  assume." 

Before  this  supreme  law  the  acts  of  Congress,  the  acts 
of  State  legislatures,  and  the  constitutions  of  States,  when\ 
conflicting  with  it,  go  down.     When  the  people   express  J 
their  will  in  the  National  Constitution  all  conflicting  ex- 
pressions of  will  of  an  inferior  sort  go  for  nothing, 
excellent  illustration  of  the  absolute  supremacy    of  th 
Constitution  was  presented  in  the  Eighteenth  Amendi  ] 
ment,  prohibiting  the  manufacture  and  sale  of  intoxi-^ 
eating  liquors,  because  at  the  time  of  its  adoption  there  •K 
were  not  only  many  States  with  laws  permitting  the  manu- 
facture  and  sale  of  liquors,  but  there  were  also  acts  of  Con-    ^ 
gress,  and,  moreover,  the  National  treasury  derived  large    J" 
revenue  from  licenses  and  taxes  respecting  liquors.    But 
all   those   fell   and   were   nothing   the   instant   that   the 
Eighteenth  Amendment,   the  supreme  law,   took  effect. 
"The  first  section  of  the  Amendment,"  said  the  Supreme 


1 


178  Constitution  of  the  United  States 

Court  of  the  United  States,  disposing  (June  7,  1920)  in 
one  decision  of  cases  which  arose  in  New  Jersey,  Rhode 
Island,  Massachusetts,  Kentucky,  Wisconsin,  and  Mis- 
souri, *Hhe  one  embodying  the  prohibition,  is  oper- 
ative throughout  the  entire  territorial  limits  of  the  United 
States,  binds  all  legislative  bodies,  courts,  pubUc  officers, 
and  individuals  within  those  limits,  and  of  its  own  force 
invalidates  every  legislative  act  —  whether  by  Congress, 
by  a  State  legislature,  or  by  a  Territorial  assembly  —  which 
authorizes  or  sanctions  what  the  section  prohibits." 
A  good  illustration  of  the  statement  in  the  Constitution 
that  a  treaty  (along  with  the  Constitution  itself,  and  the 
,acts  of  Congress  made  in  the  pursuance  of  it)  is  the  su- 
^,  preme  law  of  the  land,  before  which  National  laws,  State 
laws,  and  judicial  decisions  must  fall,  is  found  in  the  Mi- 
gratory Bird  Case,  in  which  the  Supreme  Court  held  (1920) 
that,  upon  our  making  a  treaty  in  191 6  with  Great  Britain 
for  the  protection  of  birds  passing  between  the  United 
States  and  Canada,  the  States  ceased  to  have  regulatory 
power.  When  the  supervisory  power  was  given  to  Con- 
gress by  a  treaty,  the  treaty  and  the  act  to  carry  it  out 
became  the  supreme  law  of  the  land.  Of  the  three  ele- 
ments entering  into  what  the  Constitution  declares  to  be 
the  ''supreme  law  of  the  land",  namely,  "this  Constitution, 
and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made  or  which  shall  be 
made  under  the  authority  of  the  United  States",  the  treaty 
is  second  to  no  other.  The  laws  of  Congress  are  not  the 
supreme  law  of  the  land  unless  they  ''shall  be  made  in 
pursuance  thereof"  —  of  the  Constitution.  But  the  treaty 
is  the  supreme  law  of  the  land  when  made  "under  the  au- 
thority of  the  United  States"  —  that  is,  when  negotiated 
by  the  President  and  approved  by  the  Senate.  The 
people  having  expressed  their  National  will  in  a  treaty, 
the  will  of  a  State  respecting  the  subject  must  conform 
to  the  superior  will. 


^  Its  Sources  and  Application  179 

Of  the  cooperation  which  should  prevail  between  the 
State  and  the  Nation  and  of  the  proper  relation  of  the  two 
governments  to  each  other  the  Supreme  Court  said  (1858) : 

"Nor  is  there  anything  in  this  supremacy  of  the  general 
government,  or  the  jurisdiction  of  its  judicial  tribunals, 
to  awaken  the  jealousy  or  offend  the  natural  and  just  pride 
of  State  sovereignty,  ^feither  this  government,  nor  the 
powers  of  which  we  a^r speaking,  were  forced  upon  the 
States.  The  Constitution  of  the  United  States,  with  all 
the  powers  conferred  by  it  on  the  general  government,  and 
surrendered  by  the  States,  was  the  voluntary  act  of  the 
people  of  the  several  States,  deliberately  done,  for  their 
own  protection  and  safety  against  injustice  from  one 
another." 

and  the  Judges  in  every  State  shall  be  bound  thereby, 
any  Thing  in  the  Constitution  or  Laws  of  any  State 
to  the  Contrary  notwithstanding.^^^ 

^^^  Every  judge  in  every  court  of  the  States  is  under  oath 
or  affirmation  to  support  the  Constitution  of  the  United 
States.  When  any  litigation  arises  out  of  the  constitution 
of  his  State  or  out  of  any  of  its  laws  it  is  by  this  clause  made 
his  duty  to  "be  bound"  by  the  National  Constitution  and 
laws  and  in  a  proper  case  to  hold  the  State  constitution 
or  law  to  be  void  for  conflict  with  "the  supreme  law  of 
the  land."  This  the  courts  of  the  States  have  done  from 
the  beginning  down  in  almost  countless  cases,  as  where  a 
State  constitution  or  law  has  interfered  with  or  assumed 
to  control  interstate  commerce,  or  to  deal  discriminatively 
with  the  citizens  of  other  States  or  of  the  United  States, 
or  to  emit  bills  of  credit  or  paper  money,  or  to  prescribe 
ex  post  facto  punishment,  or  to  impair  the  obligations  of 
contracts,  and  so  on.  But  when  a  State  court  fails  in 
this  respect  its  action  is  reviewable  and  reversible  by  the 
Supreme  Court  of  the  United  States. 


180  Constitution  of  the  United  States 

Discussing  this  clause,  Dicey,  the  distinguished  English 
legist,  mentions  that  while  French  constitutionahsts  en- 
deavored by  many  and  strict  provisions  to  *' confine  the 
power  of  the  legislature",  they  failed  to  recognize  and 
provide  for  *'the  fact  that  enactments  of  the  legislature 
might,  without  being  in  so  many  words  opposed  to  the 
Constitution,  yet  be  of  dubioj^  constitutionahty,  and 
that  some  means  would  be  needecffor  determining  whether 
a  given  law  was  or  was  not  in  opposition  to  the  principles 
of  the  Constitution."  He  states  that  "a  constitution  may 
be  undermined  by  the  passing  of  laws  which,  without  nomi- 
nally changing  its  provisions,  violate  its  principles." 
George  Washington  adverted  to  this  in  his  Farewell  Ad- 
dres\and  said  that  ''one  method  of  assault  may  be  to  effect 
in  the'lform  of  the  Constitution  alterations  which  will  im- 
pair the  energy  of  the  system  and  thus  to  undermine  what 
cannot  be  directly  overthrown." 

Dicey  declares  that  the  Americans  solved  the  problem. 
They  ''directed  their  attention,  not  so  much  to  prevent- 
ing Congress  and  other  legislatures  from  making  laws  in 
excess  of  their  powers,  as  to  the  invention  of  means  by 
which  the  effect  of  unconstitutional  laws  may  be  nullified ; 
and  this  result  they  have  achieved  by  making  it  the  duty 
of  every  judge  throughout  the  Union  to  treat  as  void  any 
enactment  which  violates  the  Constitution,  and  thus  have 
given  to  the  restrictions  contained  in  the  Constitution  on 
the  legislative  authority  either  of  Congress  or  the  State 
legislature  the  character  of  real  laws,  that  is,  of  rules  en- 
forced by  the  courts.  This  system,  which  makes  the  judges 
the  guardians  of  the  Constitution,  provides  the  only  ade- 
quate safeguard  which  has  hitherto  been  invented  against 
unconstitutional  legislation." 

In  another  chapter  Dicey  returns  to  the  subject  and 
points  out  that  "in  no  country  has  greater  skill  been  ex- 
pended" in  the  construction  of  a  judicial  system,  and  he 
mentions  again  that  "the  guardianship  of  the  Constitu- 


Its  Sources  and  Application  181 

tion  is  in  America  confided  not  only  to  the  Supreme  Court, 
but  to  every  judge  throughout  the  land." 

"The  power,  moreover,  of  the  courts  which  maintains 
the  articles  of  the  Constitution  as  the  law  of  the  land/' 
quoting  Dicey  further,  "and  thereby  keeps  each  authority 
within  its  proper  sphere,  is  exerted  with  an  ease  and  regu- 
larity which  has  astounded  and  perplexed  Continental 
critics.  The  explanation  is  that  while  the  judges  of  the 
United  States  control  the  action  of  the  Constitution,  they 
nevertheless  perform  purely  judicial  functions,  since  they 
never  decide  anything  but  the  cases  before  them." 

That  is,  they  do  not  have  the  initiative  to  interfere. 
A  "case"  must  be  brought  before  they  can  act.  All  the 
decisions  of  the  courts  have  disposed,  not  of  theoretic  or 
academic  questions,  but  of  actual  and  weighty  contro- 
versies between  me'n  with  respect  to  life,  Uberty,  or  prop- 
erty. One  party  has  claimed  a  right  under  the  Constitu- 
tion, or  under  an  act  of  Congress,  or  under  a  treaty.  The 
other  party  has  contested  the  claim.  The  court  has  de- 
cided the  contention.  Except  where  a  case  is  thus  brought 
for  judgment  before  a  court  by  contesting  parties,  the 
judiciary  has  no  power  to  render  any  decision  or  to  make 
any  pronouncement  whatsoever.  Both  the  Legislative 
Department  and  the  Executive  Department  have  vast 
initiative  —  the  Judicial  Department  has  none  at  all. 

The  Constitution  of  Australia  is  declared,  like  ours, 
to  be  the  supreme  law  of  the  land,  and  that  "it  shall  be 
binding  on  the  courts,  judges,  and  the  peoples  of  every  State 
and  of  every  part  of  the  Commonwealth,  notwithstanding 
anything  in  the  law  of  any  State."  The  High  Court  of 
Australia,  like  our  Supreme  Court,  and  like  the  Supreme 
Court  of  Canada,  declares  invalid  a  legislative  act  in  con- 
flict with  the  Constitution. 

The  Senators  and  Representatives  before  men- 
tioned, and  the  Members  of  the  several  State  Legis- 


182  Constitution  of  the  United  States 

latures,  and  all  executive  and  judicial  Of&cers,  both 
of  the  United  States  and  of  the  several  States,  shall 
be  bound  by  Oath  or  Affirmation,  to  support  this  Con- 
stitution ;  ^^^ 

^^^  In  the  oath  taken  by  a  State  officer  he  first  swears  to 
uphold  and  defend  the  Constitution  and  the  laws  of  the 
United  States,  and  next  he  swears  to  support  those  of  his 
State. 

The  first  oath  prescribed  by  Congress  (June  i,  1789) 
was  simply  to  support  the  Constitution,  and  it  contained 
no  invocation  to  God.  During  the  Civil  War  (July  2f 
1862)  the  oath  was  changed  by  Congress  to  what  was 
called  the  '* iron-clad  oath",  and  the  affiant  was  required 
to  say  that  he  had  not  borne  arms  against  the  United 
States  or  given  aid  or  encouragement  to  hostile  forces, 
or  held  office  under  hostile  authority;  and  he  was  made 
to  declare  that  he  would  support  and  defend  the  Constitu- 
tion against  all  enemies,  that  he  took  the  oath  without 
mental  reservation  or  evasion,  and  that  he  would  faith- 
fully discharge  the  duties  of  the  office,  "so  help  me  God." 
So  far  as  this  Act  prevented  a  man  from  resuming  his 
practice  as  an  attorney  before  the  Supreme  Court  after 
he  had  been  pardoned  by  the  President  for  holding  office 
under  the  Confederate  States  it  was  held  to  be  unconstitu- 
tional because  ex  post  facto,  imposing  a  punishment  which 
was  not  prescribed  at  the  time  of  the  misconduct.  It  is 
operated  as  a  bill  of  attainder  because  a  person  was,  with- 
out trial,  adjudged  guilty  of  a  crime  and  sentenced  to 
exclusion  from  civil  rights.  In  1868  Congress  made  a 
modification  of  the  foregoing  oath  for  those  who  had 
''participated  in  the  late  rebellion  and  from  whom  all 
legal  disabihties"  had  been  *' removed  by  Act  of  Congress." 

''This  is  the  last  and  closing  clause  of  the  Constitution," 
said  the  Supreme  Court  (1858),  disposing  of  a  case  in 
which  the  Supreme  Court  of  a  State  had  undertaken  to 


Its  Sources  and  Amplication  183 

release  a  man  in  the  custody  of  a  United  States  marshal 
who  was  holding  him  under  a  warrant  issued  by  a 
United  States  District  Court  in  pursuance  of  an  act  of 
Congress,  *'and  inserted  when  the  whole  frame  of  gov- 
ernment, with  the  powers  hereinbefore  specified,  had  been 
adopted  by  the  Convention;  and  it  was  in  that  form, 
and  with  these  powers,  that  the  Constitution  was  sub- 
mitted to  the  people  of  the  several  States,  for  their  con- 
sideration and  decision.  ...  In  the  emphatic  language 
of  the  pledge  required,  it  is  to  support  this  Constitution. 
And  no  power  is  more  clearly  conferred  by  the  Constitu- 
tion and  laws  of  the  United  States  than  the  power  of 
this  court  to  decide,  ultimately  and  finally,  all  cases 
arising  under  such  Constitution  and  laws.'' 

Writing  of  the  approaching  civil  war  between  Charles  I 
and  Parhament,  in  which  the  House  of  Lords  would  prob- 
ably favor  the  King,  the  historian  Green  ("English  People,'* 
Sec.  1036)  portrayed  in  a  sentence  the  dire  consequences  of 
a  lack  of  clearly  defined  powers  of  government  and  of  the 
binding  of  all  officers  of  government  to  follow  absolutely 
the  written  charter : 

*'The  legal  antiquarians  of  the  older  constitutional  school 
stood  helpless  before  such  a  conflict  of  coordinate  powers, 
a  conflict  for  which  no  provision  had  been  made  by  the 
law,  and  on  which  precedents  threw  only  a  doubtful  and 
conflicting  light." 

but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the 
United  States.^^e 

^^^  By  the  oaths  prescribed  by  some  of  the  States  the 
person  entering  office  was  required  to  express  behef  in 
"one  God,  the  creator  of  the  universe,  the  rewarder  of  the 
good  and  the  punisher  of  the  wicked";  or  to  declare  be- 
Hef  in  the  "divine  inspiration"  of  the  Scriptures,  or  "faith 
in  God  the  Father  and  in  Jesus  Christ,  His  only  Son",  and 


184  Constitution  of  the  United  States 

so  on.  Such  oaths  excluded  from  office  those  whose  be- 
lief prevented  them  from  so  swearing,  and  they  were  con- 
sequently the  ^'religious  test"  forbidden  by  this  clause 
of  the  Constitution.  This  clause  was  added  by  motion 
in  the  Constitutional  Convention  to  the  language  requir- 
ing an  oath  by  all  officials,  both  National  and  State,  and 
its  adoption  was  unanimous.  The  clause,  however,  is  not 
a  prohibition  upon  the  States.  But  most  if  not  all  of  the 
constitutions  of  the  States  have  a  like  provision. 

This  subject  comes  up  again  in  another  form  in  the 
First  Amendment,  which  forbids  (Note  141)  Congress 
(not  the  States)  to  make  any  ''law  respecting  an  establish^ 
ment  of  religion  or  prohibiting  the  free  exercise  thereof. 
The  First  Amendment  also,  or  the  substance  of  it,  is  in 
the  constitutions  of  the  States,  though  some  were  slow  in 
adopting  it. 


ARTICLE  Vn 

The  Ratification  of  the  Conventions  of  nine  States 
shall  be  sufficient  for  the  Establishment  of  this  Con- 
stitution between  the  States  so  ratifying  the  Same.^" 

^^^  As  the  Articles  of  Confederation  (Art.  XIII)  provided 
that  no  alteration  should  ever  be  made  in  them  unless 
''agreed  to  in  a  Congress  of  the  United  States  and  be  after- 
wards confirmed  by  the  legislature  of  every  State  ",  this 
complete  superseding  of  the  Articles  by  the  action,  not 
of  ''a  congress",  but  of  a  Constitutional  Convention,  and 
the  ratifying  of  that  action  by  nine  States  instead  of  every 
one  of  the  thirteen,  has  been  described  as  revolutionary. 
However,  the  people  ratified  the  Constitution  as  prepared, 
and  it  was  within  their  power  to  make  any  change  that 
seemed  desirable.  It  has  been  seen  (Note  129)  that  the 
provision  requiring  unanimity  of  State  action  was  in  prac- 
tice destructive  of  government.  It  was  the  belief  in  the 
Constitutional  Convention  that  the  new  instriunent  could 
not  at  first  secure  the  approval  of  every  State.  That 
was  correct.  The  Constitution  went  into  operation  with 
George  Washington  as  President  and  a  Congress  of  two 
Houses  sitting  before  North  CaroHna  and  Rhode  Island 
ratified  it.  ''To  have  required  the  unanimous  ratifica- 
tion of  the  thirteen  States,"  wrote  Madison  in  "The 
Federalist",.  .  ."  wojjld  have  marked  a  want  of  foresight 
in  the  Convention  whi^  our  own  experience  would  have 
rendered  inexcusable."  There  was  much  debate  over  a 
proposal  that  the  Constitution  be  submitted  for  ratifica- 
tion to  the  legislatures  of  th'e  States  instead  of  to  "conven- 
tions", but  the  proposal  was  rejected.    Some  feared  that 


186  Constitution  of  the  United  States 

the  legislatures  might  not  ratify.  It  has  been  seen,  how- 
ever (Note  129),  that  amendments  to  the  Constitution 
may  be  ratified  in  either  way. 

On  September  20,  1787,  three  days  after  the  Constitu- 
tional Convention  had  finished  at  Philadelphia  the  drafting 
of  a  Constitution,  a  copy  of  the  new  instrument  was  laid 
before  the  Congress,  sitting  in  New  York,  accompanied 
by  a  letter  from  George  Washington,  who  had  presided  over 
the  Convention.  *'And  thus  the  Constitution,"  he  wrote, 
referring  to  the  many  conflicting  opinions  and  interests 
which  had  been  adjusted,  "which  we  now  present  is  the 
result  of  a  spirit  of  amity,  and  of  that  mutual  deference  and 
concession  which  the  pecuKarity  of  our  political  situation 
rendered  indispensable."  Congress  at  once  sent  a  copy 
of  the  Constitution,  with  a  copy  of  Washington's  letter, 
to  the  legislature  of  each  State  and  urged  the  calling  of 
ratifying  conventions.  Then  began  the  great  battle  in 
each  of  the  thirteen  States  over  ratification.  The  Httle 
State  of  Delaware,  the  only  fear  of  which  had  been  removed 
by  the  grant  of  a  vote  in  the  Senate  equal  to  that  of  the 
largest  State  (Notes  18  and  131),  was  the  first  to  ratify, 
on  December  16,  less  than  three  months  after  the  Con- 
stitutional Convention  adjourned.  But  in  Pennsylvania, 
New  York,  Massachusetts,  Virginia,  and  Maryland  the 
opposition  was  strong  and  it  had  able  leadership  —  al- 
though most  of  the  objections  raised  look  unimportant 
now  when  viewed  in  the  Hght  of  experience.  It  was  ob- 
jected that  the  vote  in  each  House  of  Congress  was  to  be 
by  individuals  instead  of  by  States;  that  Congress  was 
to  have  an  unlimited  power  of  taxation;  that  too  much 
power  was  given  to  the  National  judiciary;  that  paying 
the  salaries  of  senators  and  representatives  out  of  the 
National  treasury  would  make  them  independent  of  their 
own  States;  that  an  oath  of  allegiance  to  the  National 
Government  was  to  be  required ;  that  laws  impairing  the 
obligation  of  contracts  were  to  be  prohibited;    that  the 


Its  Sources  and  Application  187 

document  was  the  production  of  ''visionary  young  men'^, 
like  Hamilton  and  Madison ;  that  the  election  of  members 
of  the  House  of  Representatives  for  so  long  a  term  as  two 
years  would  be  dangerous ;  that  the  new  Congress  might 
make  itself  a  perpetual  oligarchy  and  tax  the  people  at 
will;  that  a  National  capital  in  so  vast  an  area  as  ten 
miles  square  (the  District  of  Columbia),  independent  of 
the  State,  would  foster  tyranny ;  that  the  power  to  main- 
tain an  army  would  bring  oppression;  that  Congress 
would  use  the  power  granted  with  respect  to  elections  to 
destroy  freedom  of  the  ballot ;  that  assent  should  not  be 
given  to  the  continuance  of  the  slave  trade  until  1808; 
that  the  Constitution  contained  no  bill  of  rights ;  and  that 
it  gave  no  recognition  to  the  existence  of  God. 

Ratification  was  vigorously  opposed  by  such  men  as 
Patrick  Henry,  Benjamin  Harrison,  John  Tyler,  and 
Richard  Henry  Lee  of  Virginia,  Elbridge  Gerry  of  Massa- 
chusetts, Luther  Martin  and  Samuel  Chase  of  Maryland, 
Thomas  Sumter  of  South  Carohna,  and  George  Clinton 
and  Melanchton  Smith  of  New  York. 

While  much  pamphleteering  and  debating  was  done  in 
Pennsylvania  and  elsewhere,  the  great  battle  was  waged 
in  New  York.  Not  only  was  that  State  necessary  to  the 
Union  because  it  lay  between  northern  and  southern  States 
which  had  already  ratified  and  which  could  not  be  close 
commercially  or  poHtically  if  divided  by  a  foreign  State, 
but  more  than  two  thirds  of  the  members  of  the  convention 
called  in  New  York  to  ratify  or  reject  were  opposed  to 
the  Constitution.  Alexander  Hamilton  conceived  the 
idea  of  explaining  each  part  of  the  Constitution  in  a  series 
of  short  articles  which  appeared  in  different  pubKcations. 
James  Madison  and  John  Jay  aided  in  the  work.  Of  the 
eighty-five  letters  pubhshed  and  signed  Publius,  five  were 
written  by  Jay,  twenty-nine  by  Madison,  and  fifty-one 
by  Hamilton.  They  helped  to  carry  the  day,  and  New 
York  entered  the  Union  on  July  26,  1788,  of  which  it  be- 


188  Constitution  of  the  United  States 

came  the  Empire  State.  In  book  form  those  letters  are 
known  as  the  "FederaHst",  the  most  brilliant  work  on  our 
Constitution.  During  the  French  Revolution,  which  fol- 
lowed ours,  the  ''Federalist"  was  translated  into  French. 
Later  it  appeared  in  German  during  dreams  of  a  republic. 
It  appeared  in  Spanish  and  Portuguese  in  South  America, 
for  fifteen  repubHcs  south  of  us  framed  constitutions  after 
ours.  While  the  correspondence  of  the  time  throws  much 
light  upon  the  workings  of  the  Constitutional  Convention, 
the  sessions  of  which  were  secret,  like  those  of  the  British 
Parliament,  the  main  source  of  information  is  the  Madison 
Papers  or  the  Madison  Journal,  made  up  from  the  short- 
hand notes  of  the  great  delegate  from  Virginia.  Congress 
caused  the  pubHcation  of  the  notes  in  1843. 

"No  man  could  say  whether  argument  or  interest  had 
won  the  fight  for  the  Constitution,"  says  Woodrow  Wilson 
("A  History  of  the  American  People",  Vol.  3,  p.  98), 
referring  to  the  *' Federalist"  and  the  other  discussions 
of  the  time,  ''but  it  was  at  least  certain  that  nothing  had 
been  done  hastily  or  in  a  corner  to  change  the  forms  of 
Union.  These  close  encounters  of  debate  had  at  least 
made  the  country  fully  conscious  of  what  it  did.  The 
new  Constitution  had  been  cordially  put  through  its  public 
ordeal.  All  knew  what  it  was  and  for  what  purpose  it 
was  to  be  set  up.  Opinion  had  made  it,  not  force  or  in- 
trigue ;  and  it  was  to  be  tried  as  a  thing  the  whole  country 
had  shown  itself  willing  to  see  put  to  the  test." 

DONE  in  Convention  by  the  Unanimous  Consent  of 
the  States  present  ^^^ 

13^  Rhode  Island  was  not  present.  While  there  was 
"unanimous  consent  of  the  States  present",  some  dele- 
gates of  States  refused  to  sign.  For  New  York  the  only 
signature  was  that  of  Alexander  Hamilton. 

Only  fifty-five  of  the  sixty-five  delegates  chosen  by  the 
States  sat  in  the  Constitutional  Convention.    Of   those, 


f 


Its  Sources  and  Application 


189 


forty-two  were  present  at  the  signing.  Three  of  those 
present  (Randolph  and  Mason  of  Virginia  and  Gerry  of 
Massachusetts)  refused  to  sign  because  they  believed  that 
too  much  power  was  taken  away  from  the  States. 

the  Seventeenth  Day  of  September  in  the  Year  of 
our  Lord,  one  thousand  seven  hundred  and  Eighty 
seven  and  of  the  Independence  of  the  United  States 
of  America  the  Twelfth.  IN  WITNESS  whereof  We 
have  hereunto  subscribed  our  Names, 

(Signed  by)  G^  Washington 

Presidt  and  deputy  from  Virginia 

New  Hampshire, 
John  Langdon  Nicholas  Gilman 

Massachusetts.  •  ^ 

Nathaniel  Gorham  Rufus  King 

Connecticut, 
Wm  Saml  Johnson  Roger  Sherman 

New  York, 
Alexander  Hamilton 

New  Jersey. 

Wm  Patterson 
Jona :  Dayton 

Pennsylvania, 

Thomas  MiflBin 
Geo.  Clymer 
Jared  IngersoU 
Gouv  Morris 


Wil :  Livingston 
David  Brearley. 

B.  Franklin 
Robt.  Morris 
Thos.  Fitzsimons 
James  Wilson 

Geo :  Read 
John  Dickinson 
Jaco :  Broom 


Delaware. 

Gunning  Bedford  jun. 
Richard  Basse tt 


190  Constitution  of  the  United  States 

Maryland. 
James  McHenry  Dan :  of  St  Thos  Jenifer 

Danl  Carroll 

Virginia. 
•  John  Blair  -  James  Madison  Jr. 

North  Carolina. 
Wm  Blount  Richd  Dobbs  Spaight, 

Hu  Williamson 

South  Carolina. 
J.  Rutledge  Charles  Cotesworth  Pinckney 

Charles  Pinckney  Pierce  Butler. 

Georgia. 
William  Few  Abr  Baldwin 

Attest:  William  Jackson,  Secretary. ^^^ 

139  <'Xhus  after  four  months  of  anxious  toil/'  says  Fiske 
("Critical  Period  of  American  History",  p.  304),  *' through 
the  whole  of  a  scorching  Philadelphia  summer,  after  earnest 
but  sometimes  bitter  discussion,  in  which  more  than  once 
the  meeting  had  seemed  on  the  point  of  breaking  up,  a 
colossal  work  had  at  last  been  accompUshed,  the  results  of 
which  were  most  powerfully  to  affect  the  whole  future  career 
of  the  human  race  so  long  as  it  shall  dwell  upon  the  earth." 

The  calculation  has  been  made  that  the  Constitutional 
Convention  spent  upon  its  task  eighty-six  working  days. 

"  The  establishment  of  our  institutions,''  wrote  Presi- 
dent Monroe,  ^' forms  the  most  important  epoch  tha 
history  hath  recorded.  They  extend  unexampled  felicity 
to  the  whole  body  of  our  fellow-citizens,  and  are  the  ad- 
miration of  other  nations.  To  preserve  and  hand  them 
down  in  their  utmost  purity  to  the  remotest  ages  will 
require  the  existence  and  practice  of  virtues  and  talents 
equal  to  those  which  were  displayed  in  acquiring  them. 
It  is  ardently  hoped  and  confidently  beheved  that  these 
will  not  be  wanting," 


Its  Sources  and  Application 


191 


How  The  Constitution  Was  Ratified 

The  course  of  the  thirteen  States  in  ratifying  the  new 
Constitution  presents  an  interesting  study : 


1787 

Unanimous 

Fof 

Against 

Dec.     6 

Delaware  * 

u' 

22 

Pennsylvania 

46 

25 

18 

New  Jersey 

u 

1788 

Jan.     2 

Georgia 

u   ^ 

9 

Connecticut 

128 

40 

Feb.     6 

Massachusetts  2 

187 

68 

Apr.  26 

Maryland 

63 

II 

May  23 

South  Carolin,a  ' 

149 

73 

June  21 

New  Hampshjre  ^ 

57 

46 

25 

Virginia  ^ 

89 

79 

July  26 

New  York  « 

30 

27 

1789 

Nov.  21 

North  Carolina  ^ 

195 

77 

1790 

May  29 

Rhode  Island  » 

34 

32 

^  The  small  State  having  had  its  great  fear  dispelled  by  the  guar- 
antee of  a  vote  in  the  Senate  equal  to  that  of  the  largest,  Delaware 
quickly  led  in  ratifying. 

^  In  the  ratifying  convention  of  Massachusetts  there  was  strong 
opposition  to  those  clauses  of  the  Constitution  (Notes  n,  61,  and  121) 
which  made  concessions  to  slavery.  And  there  was  dislike  of  the 
clause  (Note  136)  forbidding  a  religious  test  for  the  person  holding 
ofl&ce.  While  a  bill  of  rights  also  was  desired,  Massachusetts  set  the 
good  example  of  ratifying  "in  full  confidence  that  the  amendments 
proposed  will  soon  become  a  part  of  the  system",  as  they  did. 

3  Ratification  by  South  CaroHna  destroyed  the  hgpe  of  some 
Virginians  for  a  separate  confederacy  of  southern  States.  They 
were  opposed  to  the  National  powers  granted  by  the  Constitution. 

*0n  July  2  Congress  received  jvord  that  the  ninth  State  had 
ratified.    In  September  it   fixed  the  first  Wednesday  in  January, 


192  Constitution  of  the  United  States 

1789,  for  the  choice  of  electors,  the  first  Wednesday  in  February 
for  balloting  for  a  President  and  a  Vice  President,  and  the  first 
Wednesday  in  March  (March  4,  as  it  happened  and  as  the  date  has 
remained)  for  the  commencement  of  the  new  govermnent. 

^In  addition  to  opposing  a  strong  National  government  as 
against  the  dominance  of  the  State,  Virginians,  led  by  Patrick  Henry, 
objected  to  the  clause  (Note  71)  preventing  a  State  from  impairing 
the  obhgation  of  a  contract.  At  that  time  Virginian  planters  owed 
to  English  merchants  over  ten  miUion  dollars  and  the  legislature  of 
Virginia  had  suspended  their  right  to  sue  for  their  money  in  the  courts 
of  that  State. 

*  New  York,  in  the  port  of  which  more  than  one  half  of  the  goods 
consumed  in  Connecticut,  New  Jersey,  Vermont,  and  western  Massa- 
chusetts paid  duties  or  other  taxes,  stubbornly  opposed  the  Constitu- 
tion because  of  the  commerce  clause  (Note  45).  Opposition  in  the 
ratifying  convention  was  led  by  Governor  CHnton.  In  support  of 
the  Constitution  the  imperishable  "Federalist"  papers  were  written 
by  Hamilton,  Madison,  and  Jay.  Chief  Justice  Morris  and  Chan- 
cellor Livingston  aided  in  the  struggle  for  the  Constitution. 

'North  Carolina  did  not  enter  the  Union  until  after  the  new 
government  was  weU  on  its  way.  The  first  convention  (July,  1788) 
refused,  by  a  vote  of  184  to  84,  to  ratify  the  Constitution  because 
of  the  lack  of  a  Bill  of  Rights  and  in  the  fear  that  the  strong 
National  government  would  in  time  overbear  State  authority. 

8  Rhode  Island,  which  did  not  send  delegates  to  the  Constitu- 
tional Convention,  and  which  long  refused  to  ratify,  knocked  at  the 
door  for  admission  after  the  new  government  began  to  deal  with  it 
as  a  foreign  country  and  subjected  it  to  taxes  on  its  exports. 


ADDRESS  AT  GETTYSBURG 

Abraham    Lincoln 

November  19,  1863 

Fourscore  and  seven  years  ago  our  fathers  brought 
forth  upon  this  continent  a  new  nation,  conceived  in  liberty, 
and  dedicated  to  the  proposition  that  all  men  are  created 
equal.  Now  we  are  engaged  in  a  great  civil  war,  testing 
whether  that  nation,  or  any  nation  so  conceived  and  so 
dedicated,  can  long  endure.  We  are  met  on  a  great  battle- 
field of  that  war.  We  have  come  to  dedicate  a  portion  of 
that  field  as  a  final  resting-place  for  those  who  here  gave 
their  lives  that  that  nation  might  five.  It  is  altogether 
fitting  and  proper  that  we  should  do  this.  But  in  a  larger 
sense  we  cannot  dedicate,  we  cannot  consecrate,  we  cannot 
hallow  this  ground.  The  brave  men,  living  and  dead, 
who  struggled  here,  have  consecrated  it  far  above  our 
power  to  add  or  detract.  The  world  will  Kttle  note,  nor 
long  remember,  what  we  say  here,  but  it  can  never  forget 
what  they  did  here.  It  is  for  us,  the  living,  rather  to  be 
dedicated  here  to  the  unfinished  work  which  they  who 
fought  here  have  thus  far  so  nobly  advanced.  It  is  rather 
for  us  to  be  here  dedicated  to  the  great  task  remaining 
before  us,  that  from  these  honored  dead  we  take  increased 
devotion  to  that  cause  for  which  they  gave  the  la«t  full 
measure  of  devotion ;  that  we  here  highly  resolve  that  these 
dead  shall  not  have  died  in  vain ;  that  this  Nation,  under 
God,  shall  have  a  new  birth  of  freedom,  and  that  govern- 
ment of  the  people,  by  the  people,  for  the  people,  shall  not 
perish  from  the  earth. 


ARTICLES 
IN   ADDITION   TO,    AND    AMENDMENT   OF, 
THE  CONSTITUTION  OF    THE  UNITED   STATES 
OF   AMERICA,  ''^ 


Proposed  by  Congress,  and  Ratified  by  the  Legislatures 
of  the  Several  States,  Pursuant  to  the  Fifth  Article 
of  the  Original  Constitution. 

First  ten  Amendments  (of  twelve)  proposed  by  Congress  Septem- 
ber 25,  1789;  adopted  June  15,  1790. 

"°  During  the  first  session  of  the  first  Congress  under  the 
new  Constitution  this  self-explanatory  resolution  was 
passed : 

*^The  Conventions  of  a  number  of  the  States  having  at  the 
time  of  their  adopting  the  Constitution  expressed  a  desire, 
in  order  to  prevent  misconstruction  or  abuse  of  its  powers, 
that  further  declaratory  and  restrictive  clauses  should  be  added: 
And  as  extending  the  ground  of  public  confidence  in  the  gov- 
ernment will  best  insure  the  beneficent  ends  of  its  institution  — 

*' Resolved  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  two- 
thirds  of  both  Houses  concurring,  That  the  following  arti- 
cles be  proposed  to  the  legislatures  of  the  several  States, 
as  amendments  to  the  Constitution  of  the  United  States^ 
all  or  any  of  which  articles,  when  ratified  by  three-fourths 
of  the  said  legislatures,  to  be  valid  to  all  intents  and  pur- 
poses, as  part  of  the  said  Constitution,  viz. : 

*' Articles  in  addition  to,  and  amendment  of,  the  Con- 
stitution of  the  United  States  of  America,  proposed  by 
Congress  and  ratified  by  the  legislatures  of  the  several 
States,  pursuant  to  the  fifth  article  of  the  original  Consti- 
tution." 


Its  Sources  and  Application  195 

Then  followed  twelve  proposed  amendments,  the  first 
two  of  which  failed  of  adoption.  The  first  related  to  mem- 
bership in  the  House  of  Representatives  by  population, 
and  the  second  was  against  the  taking  effect  of  a  law  vary- 
ing the  compensation  of  senators  and  representatives 
until  an  election  should  have  intervened. 

The  ten  Amendments  adopted  make  the  so-called  Amer- 
ican Bill  of  Rights.  It  has  been  seen  that  the  Petition  of 
Right  and  the  Declaration  of  Rights  and  the  Bill  of  Rights 
were  favorites  of  the  English.  Following  the  practice  in 
the  mother  country,  the  colonists  issued  a  Declaration 
of  Rights  through  their  first  Continental  (Stamp  Act) 
Congress  in  1765.  Mofe  than  fifteen  years  before  the 
adoption  of  these  Amendments  a  Declaration  ~  of  Rights 
had  been  issued  (1774)  by  the  Colonies  through  depu- 
ties sitting  *'in  general  congress"  at  Philadelphia.  Re- 
citing that  they  were  ^'justly  alarmed  by  these  arbitrary 
proceedings  of  ParKament",  which  they  denounced  as 
** unconstitutional"  and  "formed  to  enslave  America", 
they  took  "into  their  most  serious  consideration  the  best 
means  of  attaining"  their  rights  and  concluded  to  "do, 
in  the  first  place',  as  Enghshmen  their  ancestors  in  like 
cases  have  usually  done  for  asserting  and  vindicating  their 
rights  and  liberties."  Then  they  made  specific  declara- 
tions, among  them  being  that  the  foundation  of  liberty  is  the 
right  to  participate  in  legislative  councils ;  that  they  were 
entitled  to  the  "immunities  and  privileges"  given  by  the 
colonial  charters;  that  a  standing  army  in  the  Colonies 
was  "against  law"  ;  that  restraint  of  "the  right  peaceably 
to  assemble  .  .  .  and  petition"  is  "illegal";  that  "it 
is  indispensably  necessary  to  good  government"  that  the 
"branches  of  the  legislature  be  independent  of  each  other" 
and  that  therefore  a  legislative  council  appointed  at  the 
pleasure  of  the  King  "is  unconstitutional,  dangerous  and 
destructive  to  the  freedom  oi  American  legislation";  and 
that  Acts  of  Parliament  directing  that  "colonists  be  trans- 


196  Constitution  of  the  United  States 

ported  to  England  and  tried  there  upon  accusations  for 
treason"  and  other  acts  were  "unjust  and  cruel,  as  well 
as  unconstitutional." 

The  word  *' unconstitutional"  appears  in  this  Colonial 
Declaration  of  Rights  again  and  again. 

So  Massachusetts,  New  York,  Virginia,  and  some  other 
States  wanted  a  Bill  of  Rights  in  the  Constitution,  and 
with  the  tacit  understanding  that  they  would  have  one 
they  ratified  it.  Some  argued  that  all  the  guaranties  in 
the  Amendments  already  existed  in  the  law  transplanted 
from  England;  but  that  was  a  time  of  written  charters 
and  written  constitutions,  and,  to  remove  every  possi- 
bility of  doubt,  a  Bill  of  Rights  was  wanted  in  plain 
writing.  The  very  fact  that  a  writing  exists  between  men 
often  prevents  disputes.  When  both  know  definitely  what 
the  boundaries  are  neither  is  likely  to  make  encroach- 
ments. That  our  forefathers  were  wise  in  not  leaving  such 
vital  matters  to  inference,  implication,  or  construction  will 
be  shown  by  an  examination  of  the  first  ten  Amendments. 

*^The  executive  in  our  governments  is  not  the  sole  —  it 
is  scarcely  the  principal  —  object  of  my  jealousy,"  wrote 
Jefferson  from  Paris,  urging  upon  Madison  the  need  of 
amendments  making  a  Bill  of  Rights;  "the  tyranny  of 
the  legislatures  is  the  most  formidable  dread  at  present, 
and  will  be  for  many  years.  That  of  the  executive  will 
come  in  its  turn,  but  it  will  be  at  a  remote  period." 

The  Constitution  already  contained  provisions  belong- 
ing to  a  Bill  of  Rights,  such  as  those  forbidding  ex  post 
facto  laws  (Note  64)  and  bills  of  attainder  (Note  63),  pro- 
hibiting the  suspension  of  the  privilege  of  habeas  corpus 
(Note  62),  requiring  trial  by  jury  (Note  no)  and  at  the 
place  where  the  crime  was  committed,  defining  treason 
and  limiting  punishment  (Notes  11 3-1 16),  granting  the 
immunities  and  privileges  of  all  States  to  the  citizens  of 
each  State  (Note  119),  and  forbidding  a  religious  test 
'  (Note  136)  before  admission  to  office. 


Its  Sources  and  Application  197 

The  State  constitutions  which  were  adopted  in  1776 
after  the  Declaration  of  Independence  contained  elabo- 
rate bills  of  rights  for  the  protection  of  the  individual ;  and, 
a^  elsewhere  observed,  those  constitutions  were  the  source 
of  much  matter  selected  by  the  Constitutional  Convention. 

The  additional  safeguards  which  were  given  to  the  man 
by  the  so-called  Bill  of  Rights  will  now  be  examined.  They 
contain  nothing  novel.  They  embody  *' guaranties  and 
immunities  which  are  inherited  from  our  English  ancestors", 
the  Supreme  Court  (1897)  has  said. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  estab)r 
lishment  of  religion,  or  prohibiting  the  free  exercis^ 
thereof;  1^1 

^^^  In  the  reign  of  Charles  II,  Parliament,  for  the  purpose 
of  compelling  all  persons  to  attend  the  established  Church, 
passed  (1665)  the  Conventicle  Act  making  every  one  over 
sixteen  years  of  age  who  attended  a  conventicle  (any  meet- 
ing for  religious  worship  at  which  five  persons  were  pres- 
ent besides  the  household)  subject  to  imprisonment,  with 
transportation  beyond  seas  for  the  third  offence.  During 
the  same  reign  it  passed  the  Test  Act  requiring  oaths  in 
support  of  the  established  religion.  Under  those  acts, 
which  were  not  repealed  until  recent  times,  all  noncon- 
formists of  whatever  rehgious  behef  were  very  severely 
dealt  with.  Those  acts  hastened  emigration  to  America,  as 
did  intolerance  in  continental  countries. 

*'It  is  strange  indeed,"  says  Ridpath  (^'Popular  History 
of  the  United  States",  p.  128),  ^' that  the  very  men  who  had 
so  recently,  through  perils  by  sea  and  land,  escaped  with 
only  their  lives  to  find  religious  freedom  in  another  conti- 
nent, should  have  begun  their  career  with  intolerance  and 
persecution." 


198  Constitution  of  the  United  States 

The  established  Church  of  England  had  been  set  up  in 
several  of  the  Colonies  and  taxes  were  levied  for  its  sup- 
port. 

Madison  and  Jefferson  had  waged  (1784)  a  battle 
in  Virginia  against  the  establishment,  finally  securing 
the  passage  of  a  law  declaring  that  any  interference  by 
the  civil  authority  with  reHgious  opinion  is  against  nat- 
ural right. 

A  clause  like  this  failed  of  adoption  in  the  Constitutional 
Convention.  As  a  member  of  the  first  House  of  Repre- 
sentatives under  the  new  Constitution,  Madison  brought 
up  this  Amendment.  After  the  House  had  adopted  it  the 
Senate  rejected  it,  but  it  was  later  reinstated  by  that  body. 

When  Madison  became  President  he  vetoed  (181 1)  a 
bill  passed  by  Congress  for  incorporating  a  church  organ- 
ization because  he  held  it  contrary  to  this  Amendment, 
and  shortly  thereafter  he  vetoed  another  which  would  make 
a  gift  of  public  lands  to  a  church. 

Before  the  Constitutional  Convention  sat  several  of  the 
States  had  put  in  their  constitutions  clauses  for  reHgious 
freedom.  All  of  them  have  such  clauses  now.  The  pro- 
hibition under  consideration  is  against  the  Nation  and  not 
the  State. 

In  1890  the  Supreme  Court  of  the  United  States,  con- 
cluding a  great  contest  begun  in  the  District  Court  of  the 
Territory  of  Utah  in  1887,  held  that  the  National  Govern- 
ment had  ''a  perfect  right  to  prohibit  polygamy  and  all 
other  open  offenses  against  the  enlightened  sentiment  of 
mankind,  notwithstanding  the  pretense  of  religious  convic- 
tions by  which  they  may  be  advocated  and  practiced." 

Let  it  be  borne  in  mind  that  all  of  the  first  ten  Amend- 
ments are  of  National  effect  and  not  binding  upon  the 
States. 

or  abridging  the  freedom  of  speech,  or  of  the  press ;  ^^^ 

1*2  <'The  liberty  of  the  press  consists,  in  a  strict  sense," 


Its  Sources  and  Application  199 

says  Hallam  C  Constitutional  History  of  England '')> 
"merely  in  an  exemption  from  the  superintendence  of  a 
licenser." 

He  states  that  when,  in  the  reign  of  Henry  VIII  (1509-- 
1547),  the  political  importance  of  the  art  of  printing  began 
to  be  apprehended,  that  monarch  thought  it  necessary 
to  take  absolute  control  of  it.  Not  only  did  he  limit  the 
privilege  of  keeping  a  press,  but  he  also  required  previous 
inspection  of  the  matter  by  a  Hcenser.  The  same  authority 
states  that  "the  Long  Parliament  (1640-1660)  did  not 
hesitate  to  copy  this  precedent  of  a  tyranny  they  had  over- 
thrown." 

What  our  forefathers  meant  by  the  liberty  of  the  press 
was  defined  by  Blacks  tone  (1758)  two  centuries  after  the 
time  of  Henry  VIII  as  "in  laying  no  previous  restraints 
upon  publications,  and  not  in  freedom  from  censure 
for  criminal  matter  when  published.  Every  freeman  has 
an  undoubted  right  to  lay  what  sentiments  he  pleases  be- 
fore the  public;  .  .  .  but  if  he  publishes  what  is  im- 
proper, mischievous,  or  illegal,  he  must  take  the  conse- 
quence of  his  own  temerity." 

That  is,  he  will  be  held  accountable,  by  criminal  pro- 
ceeding or  in  civil  action  for  damages,  should  he  slander 
or  libel  another.  And  his  oral  and  written  speech  is  sub- 
ject to  restriction  by  the  police  power  for  the  protection 
of  the  moral  health  of  the  community.  Nor  is  he  free  to 
advocate  the  overthrow  of  civil  order. 

In  1 77 1,  following  the  publication  of  imperfect  reports 
of  the  debates  in  Parliament,  the  sessions  of  which  were 
then  secret,  the  House  of  Commons  issued  a  proclamation 
forbidding  the  publication  of  debates.  A  printer  who 
disobeyed  and  who  ignored  a  summons  to  appear  at  the  bar 
of  the  House  was  arrested  by  its  messenger.  The  magis- 
trates of  London  released  him  on  the  ground  that  the  proc- 
lamation was  without  legal  force.  Then  the  House  sent 
the  lord  mayor  of  the  city  to  the  Tower,  but  the  crowds 


/ 


200  Constitution  of  the  United  States 

that  followed  him  showed  to  Parliament  that  public  opinion 
was  against  it.  Further  attempt  to  prevent  reports  was 
not  made.  *'The  first  great  English  journals,"  says  Green 
C'The  English  People",  Vol.  5,  sec.  1504),  "date  from 
this  time." 

By  the  Sedition  Law  of  1798,  which  expired  by  limita- 
tion on  March  3,  1801,  the  end  of  Adams's  administration, 
Congress,  in  the  opinion  of  many,  went  to  the  limit  of  its 
power  under  this  clause ;  but  in  the  cases  which  arose  at 
the  time  the  courts  sustained  the  legislation.  The  law  was 
designed  to  suppress  seditious  newspapers  which  were 
attacking  the  Government  chiefly  because  it  had,  upon 
the  declaration  of  war  against  England  by  the  new  Re- 
public of  France,  issued  a  proclamation  of  neutrality, 
declaring  a  policy  which  has  ever  since  been  followed. 
There  was  such  widespread  sympathy  in  the  United  States 
with  the  French  Revolution  that  people  exulted  in  the  guil- 
lotining (1793)  of  Louis  XVI  and  of  Queen  Marie  Antoi- 
nette, whose  assistance  had  made  American  independence 
possible.  The  belief  was  that  the  United  States  should 
become  involved  in  the  European  conflict  and  many 
foreigners  were  pubhshing  papers  assaiHng  the  Gov- 
ernment for  not  doing  so.  The  first  minister  from  the 
French  Republic  and  other  emissaries  had  taken  advan- 
tage of  this  sentiment  and  openly  worked  against  our 
policy  of  neutrality.  The  Sedition  Law  forbade  the  pub- 
lication of  matter  which  was  intended  to  defame  the  Gov- 
ernment or  to  bring  its  officers  into  disrepute.  The  fact 
that  Washington  favored  it  explains  the  fear  which  was 
entertained  by  sober  men  that  the  end  of  all  government 
and  law  which  had  come  in  France  would  eventually  de- 
stroy the  United  States. 

Freedom  to  speak  and  freedom  to  print,  guaranteed 
by  this  clause,  must  be  considered  in  the  light  of  other 
clauses,  for  the  Constitution  is  to  be  read  as  a  whole  and 
effectuated  in  all  its  pa  :ts,  as  nearly  as  may  be  done.    Thus 


Its  Sources  and  Application  201 

another  clause  (Note  56)  empowers  Congress  to  raise 
armies.  May  speaking  or  writing  under  the  former  clause 
impede  or  cripple  the  Nation  in  its  measures  of  defense 
under  the  latter  clause  ?  The  Supreme  Court  has  answered 
No.  And  so  a  Federal  court  remarked  (192 1)  that 
while  it  is  very  desirable  to  enforce  the  Eighteenth 
Amendment,  that  end  must  not  be  accompUshed  by 
searches  and  seizures  in  violation  of  the  Fourth  Amend- 
ment, or  by  making  a  citizen  bear  witness  against  himself 
in  violation  of  the  Fifth.  And  while  under  the  clause 
respecting  the  post  office  the  Government  has  almost 
absolute  power  and  may  exclude  objectionable  matter  from 
the  mails,  it  may  not,  in  disregard  of  the  Fourth  Amend- 
ment, search  or  seize  letters  to  find  whether  the  sender 
has  committed  a  crime.  Those  examples  show  how  the 
various  clauses  of  the  Constitution  must  be  coordinated 
and  applied  together. 

Freedom  of  speech  is  not  abridged  by  the  prohibition  of 
addresses  in  public  parks  or  of  the  publication  of  libelous, 
indecent  or  blasphemous  articles  or  matter  injurious  to 
public  morals  or  private  reputation. 

In  many  States  it  has  been  held  under  similar  constitu- 
tional provisions  (for,  as  before  mentioned,  the  First 
Amendment  here  restricts  Congress  only)  that  freedom 
of  speech  and  printing  is  not  abridged  by  State  laws  for 
the  censoring  of  moving  pictures. 

Among  the  laws  of  Congress  springing  from  the  World 
War  was  the  Espionage  Act  of  June  15,  191 7,  which  for- 
bade any  one  wilfully  to  cause  or  attempt  to  cause  insub- 
ordination, disloyalty,  mutiny,  or  refusal  of  duty  in  the 
mihtary  or  naval  forces  of  the  United  States.  Every  one 
of  those  who  spoke  and  wrote  against  our  being  in  the  war, 
or  who  tried  to  dissuade  men  from  enlisting,  promptly 
Invoked  in  self-defense  this  constitutional  provision  for 
free  speech.  But  the  Espioijage  Act  was  upheld  by  the 
Supreme  Court  in  the  first  case  to  reach  it,  and  that  decla- 


202  Constitution  of  the  United  States 

ration  was  repeated  in  many  following  cases  of  varying 
facts  and  circumstances.  On  March  i,  1920,  affirming  a 
sentence  to  the  penitentiary  of  the  editor  of  a  foreign- 
language  newspaper  who  had,  during  recruiting,  pubKshed 
articles  against  our  action  in  the  War,  abusing  and  be- 
littling the  American  and  his  government,  and  showing 
up  what  he  called  "the  failure  of  recruiting",  the  Supreme 
Court  said : 

"But  simple  as  the  [Espionage]  law  is,  perilous  to  the 
country  as  disobedience  to  it  was,  offenders  developed, 
and  when  it  was  exerted  against  them  challenged  it  to 
decision  as  a  violation  of  the  right  of  free  speech  assured  by 
the  Constitution  of  the  United  States.  A  curious  spectacle 
was  presented :  that  great  ordinance  of  government  and 
orderly  liberty  was  invoked  to  justify  the  activities  of  anar- 
chy or  of  the  enemies  of  the  United  States,  and  by  a  strange 
perversion  of  its  precepts  it  was  adduced  against  itself." 

In  March,  192 1,  the  Supreme  Court  upheld  the  action 
of  the  Post  Office  Department  in  excluding  from  the  mails 
during  the  World  War  a  newspaper  which  had  denounced 
our  government  as  a  "plutocratic  republic",  a  financial 
and  political  autocracy,  which  denounced  the  Selective 
Service  Law  of  Congress  as  unconstitutional,  arbitrary, 
and  oppressive,  which  denounced  the  President  as  an  auto- 
crat, and  the  war  legislation  as  having  been  passed  by  "a 
rubber  stamp  Congress",  and  which  contended  that 
soldiers  could  not  legally  be  sent  outside  of  the  country 
and  that  the  United  States  was  waging  a  war  of  conquest. 
The  National  Defense  Act  of  191 7  said  that  any  newspapers 
published  in  violation  of  its  provisions  should  be  "non- 
mailable" and  "should  not  be  conveyed  in  the  mails  or 
delivered  from  any  post  office  or  by  any  letter  carrier." 
Pointing  out  that  the  published  matter  "was  not  designed 
to  secure  the  amendment  or  repeal  of  the  laws  denounced 
.  .  .  but  to  create  hostility  to  and  to  encourage  vio- 
lation of  them",  the  Supreme  Court  said: 


Its  Sources  and  Application  203 

"Freedom  of  the  press  may  protect  criticism  and  agita- 
tion for  modification  or  repeal  of  laws,  but  it  does  not 
extend  to  protection  of  him  who  counsels  and  encourages 
the  violation  of  the  law  as  it  exists.  The  Constitution 
was  adopted  to  preserve  our  government,  not  to  serve 
as  a  protecting  screen  for  those  who,  while  claiming  its 
privileges,  seek  to  destroy  it." 

In  an  earlier  case  (1892)  it  was  held  to  have  been  no 
abridgment  of  the  freedom  of  the  press  for  Congress  to 
exclude  from  the  mails  newspapers  containing  advertise- 
ments of  lotteries,  as  the  government  could  not  be  "com- 
pelled arbitrarily  to  assist  in  the  dissemination  of  matters 
condemned  by  its  judgment." 

The  State  supreme  courts,  under  State  constitutional 
provisions  guaranteeing  freedom  of  speech  and  of  the  press, 
have  stated  the  doctrine  as  it  has  been  expressed  in  the 
foregoing  decisions  by  the  Supreme  Court  of  the  United 
States.  Thus,  the  Constitution  of  New  York  provided 
for  freedom  in  speaking  and  writing  and  prohibited  re- 
straint of  the  "Uberty  of  speech  or  of  the  press";  but  it 
made  the  citizen  "responsible  for  the  abuse  of  that  right." 
The  court  of  last  resort  in  that  State  held  (1902)  that  a 
seditious  pubUcation  instigating  revolution  and  murder 
and  suggesting  the  persons  in  authority  to  be  murdered 
was  not  protected  by  the  State  constitution,  which,  the 
court  said,  places  "no  restraint  upon  the  power  of  the 
legislature  to  punish  the  publication  of  matter  which  is 
injurious  to  society  according  to  the  standard  of  the  com- 
mon law  —  it  does  not  deprive  the  State  of  the  primary 
right  of  self-preservation." 

And  in  191 8  the  Supreme  Court  of  Minnesota  upheld  a 
law  of  that  State  (191 7)  which  had  been  passed  in  aid  of 
the  Nation  and  which  made  it  unlawful  "for  any  person 
to  print,  publish,  or  circulate  in  any  manner  whatsoever" 
anything  "that  advocates  or  attempts  to  advocate  that 
men  should  not  enlist  in  the  military  or  naval  forces  of  the 


204  Constitution  of  the  United  States 

United  States  or  of  the  State  of  Minnesota."  Persons 
had  been  convicted  of  violating  the  Act  and  circulating 
a  pamphlet  asserting  that  ^'this  war  was  arbitrarily  de- 
clared without  the  will  of  the  people"  ;  that  "  the  President 
and  Congress  have  forced  this  war  upon  the  United 
States";  that  now  ^Hhey  are  attempting  by  miUtary 
conscription  to  fight  a  war  to  which  we  are  opposed"  ; 
that  *'the  integrity  of  the  country  is  being  menaced"; 
that  ''this  war  was  declared  to  protect  the  investments" ; 
and  so  on.  The  Supreme  Court  of  the  State  said  that  the 
Act  was  not  in  conflict  with  the  Espionage  Law  of  Con- 
gress because  the  citizens  of  the  Sta  te  (who  are  also  citizens 
of  the  United  States)  owe  a  duty  to  the  Nation,  and  that 
the  State  ''owes  a  duty  to  the  Nation  to  support,  in  full 
measure,  the  efforts  of  the  national  government."  It  was 
specifically  held  that  the  State  statute  did  not  abridge 
the  freedom  of  National  citizenship  in  violation  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United 
States. 

In  President  Jackson's  seventh  annual  message  (De- 
cember, 1835)  he  took  cognizance  of  the  abolitionist  news- 
papers and  magazines,  the  publication  of  which  had  begun 
in  1 83 1,  and  called  upon  Congress  to  prevent  the  trans- 
mission of  them  by  the  Post  Office  Department,  "  under 
severe  penalties,"  as  they  were  "  intended  to  instigate  the 
slaves  to  insurrection."  Although  many  in  Congress 
shared  his  view,  no  bill  was  passed. 

or  the  right  of  the  people  peaceably  to  assemble,  and 
to  petition  the  Government  for  a  redress  of  griev- 
ances.^^^ 

^^^This  right  already  existed  in  customary  law. 
In  the  Colonial  Declaration  of  Rights  of  October  19,  1765, 
it  was  said  "  that  it  is  the  right  of  British  subjects  in 
these  Colonies  to  petition  the  King  or  either  House  of 
Parliament " ;  and  in  the  Declaration  of  Rights  of  October 


Its  Sources  and  Amplication  205 

14,  1774,  it  was  complained  that  ^^  assemblies  have  been 
frequently  dissolved,  contrary  to  the  rights  of  the  people, 
when  they  attempted  to  deliberate  on  grievances."  It  was 
further  said  ''  that  all  prosecutions,  prohibitory  proclama- 
tions and  commitments  for  the  same  are  illegal."  It  was  de- 
clared also  that  "their  dutiful,  humble,  loyal,  and  reason- 
able petitions  to  the  Crown  for  redress  have  been  repeatedly 
treated  with  contempt  by  His  Majesty's  ministers  of  state." 

In  the  Declaration  of  Rights  submitted  by  ParUament 
to  WilHam  III  and  Mary  (1689)  and  accepted  by  them,  it 
was  said  that  the  right  to  petition  the  King  existed  and 
that  the  prosecution  of  petitioners  which  had  taken  place 
was  illegal.  It  was  considered  so  valuable  by  otir  fore- 
fathers that  it  was  protected  by  this  express  provision. 
Assembhes  for  the  discussion  of  their  rights  and  petitions 
for  the  correction  of  their  wrongs  had  been  repeatedly 
employed  by  the  colonists. 

"In  every  stage  of  these  oppressions,"  says  the  Dec- 
laration of  Independence,  "we  have  petitioned  for  redress 
in  the  most  humble  terms;  our  repeated  petitions  have 
been  answered  by  repeated  injury."  When  this  Constitu- 
tion was  written  the  right  of  assembly  and  petition  was 
preserved  in  the  constitutions  of  several  States. 

Van  Buren's  administration  was  marked  by  a  struggle 
to  prevent  the  receipt  and  consideration  by  Congress  of 
petitions  for  the  abolition  of  slavery.  Senator  Calhoun 
declared  such  petitions  a  violation  of  the  Constitution. 

The  people  must  assemble  "peaceably."  Regulations 
for  the  preservation  of  order  are  not  a  denial  of  the  right. 
Nor  can  the  right  to  petition  be  employed  for  the  purpose 
of  visiting  malice  upon  others.  The  petition  must  be  for 
something  within  the  authority  of  the  body  addressed,  or 
the  petitioners  must  in  good  faith  believe  it  to  be. 

The  petition  in  England  was  based  on  the  fact  that 
Parliament  was  a  court  as  well  as  a  legislative  body.  In- 
deed, at  first  it  was  more  of  a  court  than  a  legislature. 


206  Constitution  of  the  United  States 

Most  of  its  early  pronouncements  were  declarations  of  the 
law  as  it  existed  rather  than  enactments  of  new  law.  In 
the  course  of  time  the  courts  grew  apace  and  the  judicial 
activity  of  ParHament  decKned,  the  while  its  legislative 
activities  increased.  Neither  House  in  our  Congress  has 
ever  possessed  such  judicial  powers  as  were  once  com- 
monly exercised  by  the  Houses  of  ParHament  and  as  are 
yet  exercised  by  the  House  of  Lords.  Hence  the  right  to 
petition  never  has  been  used  so  much  in  the  United  States. 
Persons  aggrieved  file  their  petitions  in  courts  of  law  or 
equity  and  not  with  Congress.  Petitions  to  Congress  or 
to  a  State  legislature  relate  to  legislation  desired  and  not 
to  grievances  cognizable  in  court. 

In  1839  the  EngHsh  Chartists  (seeking  an  extension  of 
suffrage,  vote  by  ballot,  pay  for  members  of  Parliament, 
and  an  abolition  of  property  qualifications  for  suffrage) 
presented  to  the  House  of  Commons  a  petition  having 
1,250,000  signatures. 

ARTICLE  n. 

A  well  reffulated  Militia,  being  necessary  to  the 
security  of  aXfree  State,  the  right  of  the  people  to 
keep  and  bear  ^^ms  shall  not  be  infringed.^^^ 

^^  This  means  the  arms  necessary  to  a  militia,  and  not 
the  dirks,  c)istols,  and  other  deadly  weapons  used  by  the 
lawless.  In  the  Declaration  of  Rights  it  was  complained 
that  kings  had  disarmed  the  people.  Of  course  the  colo- 
nists were  by  force  of  early  circumstances  bearers  of  arms. 
This  prohibition  upon  the  Nation  means  that  it  can  never 
interfere  with  the  people  who  make  the  militia  of  the  States, 
and  that  therefore  the  States  will  always  have  the  means 
to  check  by  physical  force  any  usurpation  of  authority 
not  given  to  the  Nation  by  the  Constitution.  Maryland 
and  Virginia  had  such  provisions  in  their  constitutions 
when  the  Constitutional  Convention  sat. 


Its  Sources  and  Application  207 

ARTICLE  m. 

,  No  Soldier  shall,  in  time  of  peace  be  quartered  in 
any  house,  without  the  consent  of  the  Owner,  nor  in 
time  of  war,  but  in  a  manner  to  be  prescribed  by 
law.^s 

1^5  The  Petition  of  Right  of  1628,  which  Charles  I  was 
compelled  to  accept,  complained  that  "companies  of  sol- 
diers and  mariners  had  been  dispersed  into  divers  counties, 
and  the  inhabitants,  against  their  wills,  had  been  com- 
pelled to  take  them  into  their  houses  and  allow  them  there 
to  sojourn  against  the  laws  and  customs  of  this  realm.** 
The  Enghsh  Parliament  required  that  the  colonists  pro- 
vide quarters  for  troops,  and  when  General  Gage  went 
from  Halifax  to  Boston  he  demanded  quarters,  which  were 
refused. 

The  Colonial  Declaration  of  Rights  of  October  19,  1765, 
makes  no  mention  of  a  standing  army  in  the  Colonies ;  but 
that  of  October  14,  1774,  proclaimed  "that  the  keeping 
of  a  standing  army  in  these  Colonies,  in  times  of  peace, 
without  the  consent  of  the  legislature  of  that  Colony  in 
which  the  army  is  kept,  is  against  law";  and  an  act  of 
ParHament(  was  condemned  which  required  the  colonists 
to  provide  "suitable  quarters  for  officers  and  soldiers  in 
His  Majesty's  service  in  North  America."  A  complaint 
in  the  Declaration  of  Independence  against  George  III 
was  "for  quartering  large  bodies  of  armed  troops  among 
us"  and  for  "keeping  among  us  in  times  of  peace  standing 
armies  without  the  consent  of  our  legislature." 

"James  II's  army,"  says  Burnet,  "was  kept  for  some 
time  in  the  western  counties,  where  they  Hved  at  free  quar- 
ters, and  treated  all  that  they  thought  disaffected  with 
rudeness  and  violence  insufferable." 

"Before  the  Revolutioi^"  (168&),  says  Macaulay  ("His- 
tory of  England",  Vol.  5,  p.  234),  "our  ancestors  had  known 
a  standing  army  only  as  an  instrument  of  lawless  power." 


208  Constitution  of  the  United  States 


ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no 
Warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  Oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized.^^^ 

^^^Hallam  mentions  that  in  the  reign  of  Charles  I  the 
unconstitutional  practice  of  committing  to  prison  some  of 
the  most  prominent  people  and  searching  their  houses  for 
papers  was  renewed.  Cooley  says  that  this  constitutional 
provision  probably  resuhed  from  the  seizure  (1683)  of  the 
papers  of  Algernon  Sidney,  which  were  used  as  a  mdans  of 
convicting  him  of  treason;  and  of  those  of  John  Wilkes 
at  about  the  time  (1763)  that  the  controversy  between 
Great  Britain  and  the  Colonies  was  assuming  threatening 
proportions.  The  general  search  warrant  never  was  con- 
sidered legal  in  England  after  the  battle  fought  by  Wilkes. 
The  protection  of  this  clause  is  not  limited  to  one's  dwelling 
house,  but  extends  to  his  person  and  papers.  Many  cases 
have  arisen,  but  the  courts  have  invariably  held  that  no 
vague  or  general  warrant  is  sufficient  and  that  the  letter 
of  the  Constitution  must  be  closely  followed. 

Even  under  the  strict  customs  laws  enacted  by  Congress, 
the  burden  of  proof  is  on  the  claimant  seeking  to  make  seiz- 
ure, and  probable  cause  must  be  shown  for  the  act ;  while 
the  stringent  acts  of  Congress  regarding  internal  revenue 
require  that  upon  the  issuing  of  search  warrants  by  the 
district  court  and  the  commissioners  of  courts,  the  internal 
revenue  officer  must  make  oath  in  writing  that  he  has  reason 
to  believe  and  does  believe  that  ^'  a  fraud  upon  the  revenue 
has  been  or  is  being  committed  upon  or  by  the  use  of  said 
premises."    An  order  of  court  requiring  a  person  to  pro- 


Its  Sources  and  Application  209 

duce  an  invoice  of  goods  for  the  inspection  of  government 
officers  and  to  be  offered  in  evidence  against  him  was  held 
an  unconstitutional  exercise  of  authority. 

James  Otis  of  Massachusetts  became  celebrated  in  1761 
by  contesting  in  court  this  form  of  tyranny  through  the  use 
of  Writs  of  Assistance.  The  English  practice  of  personal 
search  had  become  odious  in  the  Colonies.  "A  person  with 
this  writ  in  the  daytime,"  said  Otis  in  his  argument,  "may 
enter  all  houses,  shops,  etc.  at  will,  and  command  all  to 
assist  him."  Further,  he  said,  "Every  man  prompted  by 
revenge,  ill  humor,  or  wantonness  to  inspect  the  inside  of 
his  neighbor's  house  may  get  a  Writ  of  Assistance." 

Every  day  magistrates  refuse  to  issue  search  warrants 
because  probable  cause  is  not  shown  or  because  the  oath 
required  by  this  Amendment  is  not  sufficiently  definite 
and  direct. 

An  actual  entry  of  the  premises  is  not  necessary  to  a 
search ;  a  compulsory  production  of  books  and  papers  for 
use  in  evidence  against  the  owner  of  them  was  said  by  the 
Supreme  Court  to  be  a  violation  of  the  Fourth  Amendment. 
And  an  act  of  Congress  requiring  a  party  to  produce  books 
and  papers,  and  permitting  the  Government,  in  case  of  his 
refusal,  to  assume  as  true  its  allegations  of  what  the  books 
and  papers  contained,  was  held  by  the  Supreme  Court  to 
be  void  for  conflict  with  this  Amendment. 

"The  protection  of  the  Constitution  is  not,  however, 
confined  to  the  dwelling-house,"  says  Cooley,  "but  it  ex- 
tends to  one's  person  and  papers,  wherever  they  may  be. 
It  is  justly  assumed  that  every  man  may  have  secrets  per- 
taining to  his  business,  or  his  family  or  social  relations,  to 
which  his  books,  papers,  letters,  or  journals  may  bear  testi- 
mony, but  with  which  the  public,  or  any  individuals  of  the 
public  who  may  have  controversies  with  him,  can  have  no 
legitimate  concern ;  and  if  .they  happen  to  be  disgraceful  to 
him,  they  are  nevertheless  his  secrets,  and  are  not  without 
justifiable  occasion  to  be  exposed.    Moreover,  it  is  as  easy 


210  Constitution  of  the  United  States 

to  abuse  a  search  for  the  purpose  of  destro)dng  evidence 
that  might  aid  an  accused  party,  as  it  is  for  obtaining  evi- 
dence that  would  injure  him,  and  the  citizen  needs  protection 
on  the  one  ground  as  much  as  on  the  other." 

In  1920  the  Supreme  Court  held  that  this  Amendment 
protected  a  corporation  and  its  officers  from  an  unwarranted 
''sweep  of  all  the  books,  papers,  and  documents"  made  by- 
representatives  of  the  Department  of  Justice  of  the  United 
States  under  an  invalid  subpoena  in  the  hands  of  the  United 
States  District  Attorney.  Admitting  that  the  seizure  was 
wrongful,  the  Government  contended  that  it  might  use  the 
information  so  obtained  to  make  later  a  specific  demand 
for  papers  which  it  was  unable  to  make  before.  The  Court 
said  No. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital, 
or  otherwise  infamous  crime,^^^ 

^^^  A  capital  crime  is  one  punishable  by  death  and 
an  infamous  crime  is  one  punishable  by  death  or  impris- 
onment. 

unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,i48 

^^^  The  grand  jury  consists  of  not  more  than  twenty-three 
men  called  in  by  the  sheriff  of  the  county  (or  by  the  United 
States  marshal  of  the  district)  to  hear  witnesses  respecting 
any  subject  that  may  properly  be  brought  before  them. 
If  they  beheve  that  a  person  accused  should  be  brought 
to  trial,  they  return  into  court  a  ''true  bill"  or  indictment, 
which  is  a  formal  charge  in  writing  that  acts  were  done 
amoimting  to  a  crime ;  otherwise  they  write  "no  bill."  The 
person  indicted  is  later  brought  to  trial  in  court  before  a 
petit  jury  of  twelve,  which,  after  hearing  the  evidence  on 
both  sides,  returns  a  verdict  of  guilty  or  not  guilty.    The 


Its  Sources  and  Application  211 

grand  jury  originated  when  men  were  executed  or  im- 
prisoned upon  the  order  of  the  king  or  on  the  charge  of  his 
subordinates.  It  was  designed  to  prevent  unjust  punish- 
ments, for  the  grand  jurors  (who  sat  secretly  and,  therefore, 
could  not  be  called  to  accoimt  for  opposing  the  Govern- 
ment) presumably  would  protect  the  accused  from  wrong. 
But  it  is  out  of  time  now  and  many  States  have  aboUshed 
it.  In  those  States  an  "information"  is  filed  by  the  prose- 
cuting attorney  against  the  person  whom  he  wishes  to  bring 
to  trial.  The  information  sets  out  the  charges  as  the  in- 
dictment of  the  grand  jury  does.  The  grand  jury  cannot 
be  dispensed  with  as  a  National  institution  until  this  Amend- 
ment has  been  changed. 

except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  Militia,  when  in  actual  service  in  time  of 
War  or  public  danger ;  nor  shall  any  person  be  sub- 
ject for  the  same  offence  to  be  twice  put  in  jeopardy 
of  life  or  limb ;  ^^^ 

149  Where  an  Englishman  had  been  indicted  and  put  on 
trial  and  the  evidence  did  not  appear  sufficient  the  court 
discharged  the  jury  but  ordered  the  prisoner  to  be  held  un- 
til more  proof  might  come  in.  Hallam  says  that  he  was 
accordingly  indicted  again.  When  he  pleaded  that  he  had 
already  been  tried,  the  judges  had  the  effrontery  to  deny 
that  he  had  ever  been  put  in  jeopardy.  A  person  is  con- 
sidered to  have  been  once  put  in  jeopardy  when  brought 
before  a  court  of  competent  jurisdiction  upon  an  indict- 
ment or  information  in  sufficient  form  and  a  jury  has  been 
impanelled  and  sworn  to  try  him.  Of  course  he  has  not 
been  put  in  jeopardy  where  a  jury  fails  to  agree  and  the 
jury  has  been  discharged  for  that  reason,  or  where  a  con- 
viction has  been  reversed  by  an  appellate  court. 

Nor  can  his  trial  be  stopped  after  the  jury  has  been  sworn 
to  try  him  should  it  then  appear  that  the  evidence  against 
him  is  insufficient.    The  trial  must  proceed  to  verdict. 


212  Constitution  of  the  United  States 

nor  shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself,^ ^° 

^^^  He  cannot  be  required  to  testify  either  directly  or  in- 
directly. His  papers  and  books  cannot  be  made  to  speak 
against  him.  In  this  particular  the  Fourth  and  Fifth 
Amendments  unite  for  one  purpose.  ''This  provision," 
says  the  Supreme  Court,  "had  its  origin  in  a  protest  against 
the  inquisitorial  and  manifestly  unjust  methods  of  inter- 
rogating accused  persons  which  had  long  obtained  in  the 
Continental  system  and  .  .  .  was  not  uncommon  even  in 
England."  It  has  been  remarked  as  singular  that  this  pro- 
vision should  not  have  been  put  in  the  body  of  the  Con- 
stitution, as  it  was  already  in  the  constitutions  of  several 
States  at  the  time  of  the  Convention. 

Officers  of  the  army  placed  a  man  in  the  establishment 
of  one  suspected  of  disloyalty,  and  he  purloined  papers  which 
were  used  in  evidence  against  the  owner  of  them.  Pointing 
out  once  more  that  the  Fourth  and  Fifth  Amendments  co- 
operate to  protect  a  man  from  being  made  a  witness  against 
himself,  either  orally  or  by  his  papers,  the  Supreme  Court 
of  the  United  States  reversed  (192 1)  the  trial  court  for  per- 
mitting the  papers  to  be  used,  and  said : 

"It  has  been  repeatedly  decided  that  these  Amendments 
should  receive  a  Hberal  construction,  so  as  to  prevent  steal- 
thy encroachments  or  'gradual  depreciation'  of  the  rights 
secured  by  them,  by  imperceptible  practice  of  courts,  or 
by  well-intentioned  but  mistakenly  over-zealous  executive 
officers." 

In  1893  Congress  enacted  that  no  person  should  be  ex- 
cused from  producing  books  and  papers  in  response  to  a 
subpoena  duces  tecum  (a  formal  writ  demanding  the  produc- 
tion of  specified  records)  of  the  Interstate  Commerce  Com- 
mission; but  it  kept  the  statute  within  the  purpose  of 
this  clause  by  adding  that  no  prosecution  should  follow 
any  disclosure  made.    The  prosecution  being  made  im- 


Its  Sources  and  Amplication  213 

possible,  the  basis  of  the  constitutional  right  to  refuse  to 
answer  the  Interstate  Commerce  Commission  no  longer  ex- 
ists. This  special  legislation  was  considered  necessary  to 
aid  the  Commission  in  its  investigations  of  railway  opera- 
tion and  management. 

Of  course  a  person  may  waive  the  privilege.  And  if  the 
statute  of  limitation  bars  prosecution  for  the  crime,  he  will 
be  compelled  to  answer.  So  he  cannot  claim  privilege  if 
he  has  been  pardoned,  for  that  prevents  prosecution. 

Compulsory  self-incrimination  existed  for  four  himdred 
years  after  Magna  Charta,  and  it  gained  some  recognition 
among  the  early  colonists,  for  the  record  of  the  trial  of 
Mrs.  Anne  Hutchinson  in  1673  shows  that  Governor  Win- 
throp,  who  presided,  was  not  aware  of  any  privilege  against 
seK-incrimina  tion . 

nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law;  ^^^ 

^^^  This  prohibition  as  to  National  power  is  repeated  (Note 
173)  in  the  Fourteenth  Amendment  respecting  the  conduct 
of  the  States. 

Due  process  of  law  means  substantially  the  same  as  "  the 
law  of  the  land,"  as  used  in  the  English  Petition  of  Right 
in  1628.  Indeed,  both  expressions  were  linked  in  that  cele- 
brated Petition,  which  said  that  no  man  should  be  ''in  any 
manner  destroyed  but  by  the  lawful  judgment  of  his  peers 
or  by  the  law  of  the  land"  ;  and  that  no  man  should  be  "put 
out  of  his  land  or  tenements,  nor  taken  nor  imprisoned, 
nor  disinherited,  nor  put  to  death,  without  being  brought 
to  answer  by  due  process  of  law." 

In  1855  the  Supreme  Court  of  the  United  States  answered 
the  question,  What  is  due  process  of  law?  A  trial  or  other 
legal  proceeding  must,  in  order  to  give  due  process,  con- 
form (i)  to  the  guaranties  ^contained  in  the  Constitution, 
and  (2)  to  all  other  guaranties  that  have  come  to  the  Amer- 
ican through  the  adoption  in  this  country  of  any  part  of  the 


214  Constitution  of  the  United  States 

laws  of  England.  This  clause  preserves  to  the  citizen  against 
action  by  Congress,  against  action  by  the  President,  and 
against  action  by  the  courts,  not  only  the  rights  enumerated 
in  the  Constitution  itself,  but  also  those  privileges  and  im- 
munities to  which  he  became  entitled  through  the  early  adop- 
tion and  appHcation  in  America  of  English  law. 

"The  Constitution  contains,"  said  the  Court,  "no  de- 
scription of  those  processes  which  it  was  intended  to  allow 
or  forbid.  It  does  not  even  declare  what  principles  are  to 
be  applied  to  ascertain  whether  it  be  due  process.  It  is 
manifest  that  it  was  not  left  to  the  legislative  power  to  en- 
act any  process  which  might  be  devised.  The  article  is  a 
restraint  on  the  legislative  as  well  as  on  the  executive  and 
judicial  powers  of  the  government,  and  cannot  be  so  con- 
strued as  to  leave  Congress  free  to  make  any  process  'due 
process  of  law,'  by  its  mere  will.  To  what  principles,  then, 
are  we  to  resort  to  ascertain  whether  this  process,  enacted 
by  Congress,  is  due  process?  To  this  the  answer  must  be 
twofold.  We  must  examine  the  Constitution  itself,  to  see 
whether  this  process  be  in  conflict  with  any  of  its  provisions. 
If  not  found  to  be  so,  we  must  look  to  those  settled  usages 
and  modes  of  proceeding  existing  in  the  common  and 
statute  law  of  England,  before  the  emigration  of  our  an- 
cestors, and  which  are  shown  not  to  have  been  unsuited  to 
their  civil  and  political  condition  by  having  been  acted  on 
by  them  after  the  settlement  of  this  country. " 

In  the  foregoing  case  the  property  of  a  revenue  collector 
of  the  Government,  who  had  failed  to  turn  over  more  than 
a  million  dollars,  was  summarily  seized  under  an  act  of 
Congress  (1820)  authorizing  such  procedure.  The  warrant 
of  seizure  issued  by  the  Treasury  was  legal  process,  but  was 
it  due  process?  The  Constitution  requires  (Note  no)  that 
charges  of  crime  be  tried  by  a  jury,  while  the  Seventh 
Amendment  (Note  157)  guarantees  a  jury  trial  in  all  civil 
cases  involving  over  twenty  dollars.  Had  the  delinquent 
collector  been  denied  a  constitutional  right  ?    The  Supreme 


Its  Sources  and  Application  215 

Court  said  No.  In  protecting  its  revenue  or  itself  the  Gov- 
ernment is  not  obliged  to  sue  or  be  sued  like  an  individual ; 
and  as  under  English  law,  repeated  substantially  in  the 
laws  of  Massachusetts  (1786)  and  most  of  the  other  young 
States,  like  procedure  had  been  established  for  safeguarding 
the  public  fimds,  the  act  of  Congress  complained  of  merely 
stated  what  was  due  process  of  law  on  both  sides  of  the  At- 
lantic when  the  Constitution  was  adopted. 

Due  process  of  law  is  another  name  for  legal,  judicial, 
and  governmental  fair  play.  But  a  trial  in  court  is  not 
always  essential  to  due  process.  When  a  man  has  had  a 
full  hearing  before  the  Secretary  of  the  Interior,  for  example, 
on  some  question  concerning  pubHc  lands,  the  decision  of 
the  Secretary  may  be  final  and  he  cannot  be  heard  in  court. 
So  of  questions  of  fact  before  the  Interstate  Commerce  Com- 
mission, which  is  not  a  court.  And  a  tax-payer  who  has 
been  permitted  to  produce  evidence  before  a  taxing  board, 
in  accordance  with  settled  procedure,  cannot  complain  that 
due  process  has  been  denied. 

nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation.^ ^2 

^^2  It  was  a  rule  of  Roman  law  that  private  property  could 
be  taken  for  pubHc  use  upon  the  owner's  being  paid  an  esti- 
mated value  made  by  good  men.  Magna  Charta  provided 
that  no  one  should  be  deprived  of  his  property  except  by 
the  law  of  the  land  or  by  a  judgment  of  his  peers.  The 
Code  Napoleon  of  France  (1807)  required  *'a  just  and  pre- 
vious indemnity"  for  the  taking  of  property  for  public  use. 

A  celebrated  case  under  this  article  arose  respecting 
the  estate  left  by  the  widow  of  General  Robert  E. 
Lee,  the  military  chieftain  of  the  Southern  Confederacy 
in  the  Civil  War,  which  had  been  sold  under  an  act 
of  Congress  for  collecting. taxes  *4n  the  insurrectionary 
di^ricts"  and  upon  one  part  of  which  military  officers,  act- 
ing under  orders  of  the  President,  had,  after  seizing  the 


216  Constitution  of  the  United  States 

estate,  erected  a  military  fort  and  upon  another  made  Arling- 
ton Cemetery.  In  the  trial  court  a  jury,  acting  under  definite 
instructions  as  to  the  law,  returned  a  verdict  that  the  sale 
for  taxes  had  been  illegal.  The  United  States  Government 
carried  the  case  to  the  Supreme  Court  of  the  United  States  and 
that  court  said,  in  1882  :  *'  It  is  not  pretended,  as  the  case  now 
stands,  that  the  President  had  any  lawful  authority  to  do 
this,  or  that  the  legislative  body  could  give  him  any  such 
authority  except  upon  payment  of  just  compensation.  The 
defense  stands  here  solely  upon  the  absolute  immunity  from 
judicial  inquiry  of  every  one  who  asserts  authority  from  the 
executive  branch  of  the  government,  however  clear  it  may 
be  made  that  the  executive  possessed  no  such  power.  Not 
only  no  such  power  is  given,  but  it  is  absolutely  prohibited, 
both  to  the  executive  and  the  legislative,  to  deprive  any  one 
of  life,  liberty,  or  property  without  due  process  of  law,  or  to 
take  private  property  without  just  compensation.  .  .  .  No 
man  in  this  country  is  so  high  that  he  is  above  the  law.  No 
officer  of  the  law  may  set  that  law  at  defiance  with  im- 
punity. ...  All  the  officers  of  the  government,  from  the 
highest  to  the  lowest,  are  creatures  of  the  law,  and  are  bound 
to  obey  it.  It  is  the  only  supreme  power  in  our  system  of 
government,  and  every  man  who,  by  accepting  office,  par- 
ticipates in  its  functions  is  only  the  more  strongly  bound  to 
submit  to  that  supremacy,  and  to  observe  the  Umitations 
which  it  imposes  upon  the  exercise  of  the  authority  which 
it  gives." 


ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  en- 
joy the  right  to  a  speedy  and  public  trial,  by  an  im- 
partial jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,^^^ 


Its  Sources  and  Application  217 

^^3  This  is  the  second  time  (Note  no)  that  provision  is 
made  for  the  trial  by  jury  in  criminal  cases.  When  the 
Constitution  was  written,  several  of  the  States  had  such 
constitutional  declarations. 

It  was  charged  in  the  Petition  of  Right  to  Charles  I  (1628) 
that  when  accused  persons  illegally  held  were  released  by 
judges  in  habeas  corpus  proceedings  *'they  were  detained 
by  your  Majesty's  special  command"  and  ^'were  returned 
back  to  several  prisons  without  being  charged  with  anything 
to  which  they  might  make  answer  according  to  the  law." 
That  is,  they  had  no  ''speedy  and  public  trial",  or  trial  of 
any  kind;  they  were  left  languishing  in  prison  at  the  will 
of  the  king.  It  was  pointed  out  that  Magna  Charta  pro- 
vided that  no  freeman  should  be  taken  or  imprisoned  "  but 
by  the  lawful  judgment  of  his  peers  [jury  trial]  or  by  the 
law  of  the  land."  Our  forefathers  were  well  learned  in 
English  history. 

The  speedy  trial  is  one  without  unreasonable  delay.  A 
trial  may  not  be  demanded  by  the  accused  before  the  pros- 
ecuting attorney  has  had  time  to  make  preparation.  But 
it  was  decided  by  the  Supreme  Court  of  the  United  States 
(1909)  that  a  man  might  be  held  by  the  governor  of  a  State 
without  any  trial  at  all  when  his  imprisonment  as  the  leader 
of  persons  in  insurrection  was  deemed  necessary  to  pre- 
serve the  peace.  The  Court  said  that  as  in  suppressing 
insurrection  by  force  the  governor  might  kill,  the  milder 
method  of  preserving  the  peace  was  not  obnoxious  to  this 
clause  guaranteeing  speedy  trial.  The  public  trial  is  for 
the  benefit  of  the  accused  and  not  the  public,  that  publicity 
may  prevent  the  doing  of  injustice  to  him.  Therefore  in 
proper  cases  the  court  may  exclude  those  of  the  public  who 
should  not  hear  objectionable  testimony.  It  is  enough  if 
a  few  of  the  pubUc  remain. 

A  complaint  in  the  Declaration  of  Independence  was 
"for  transporting  us  beyond  seas  to  be  tried  for  pretended 
offenses."    Hence  the  provision  requiring  that  the  accused 


218  Constitution  of  the  United  States 

be  tried  in  the  district  wherein  the  crime  was  committed. 
This  is  the  second  time  that  this  safeguard  is  stated.  It 
was  clearly  declared  in  the  Constitution  (Note  in)  and 
it  was  repeated  in  an  Amendment.  Nevertheless,  many 
unsuccessful  attempts  have  been  made  to  break  over  this 
barrier. 

and  to  be  informed  of  the  nature  and  cause  of  the  ac- 
cusation ;  ^^ 

1^^  This  is  done  in  capital  cases  by  serving  upon  the  ac- 
cused, as  required  by  an  act  of  Congress,  a  copy  of  the  in- 
dictment by  the  grand  jury.  He  then  has  adequate  time 
to  prepare  to  meet  in  court  before  a  petit  or  trial  jury  the 
charges  set  forth  in  the  indictment.  A  demand  in  the  Pe- 
tition of  Right  was  "that  freemen  be  imprisoned  or  de- 
tained only  by  the  law  of  the  land  or  by  due  process  of  law, 
and  not  by  the  king's  special  command,  without  any  chargeJ^ 

This  clause  and  the  Fifth  Amendment  were  held  by  the 
Supreme  Court  (192 1)  to  have  been  disregarded  by  Con- 
gress in  framing  the  Food  Control  Act  (191 7),  a  war  measure 
to  restrict  the  enhancing  of  prices  and  to  prevent  the  monop- 
olizing ■  of  necessaries.  A  mercantile  company  was  in- 
dicted in  the  language  of  the  Act  for  making  "an  unjust 
and  unreasonable  rate  and  charge"  for  sugar;  and  it  con- 
tended in  defense  that  the  law  fixed  "no  immutable  standard 
of  guilt",  but  left  the  criminal  act  to  be  determined  by  "the 
variant  views  of  the  different  courts  and  juries  which  may 
be  called  on  to  enforce  it."  Referring  to  "the  conflicting 
results  which  have  arisen  from  the  painstaking  attempts 
of  enlightened  judges  in  seeking  to  carry  out  the  statute", 
Chief  Justice  White  said  that  the  section  of  the  Act  in 
question  "was  void  for  repugnancy  to  the  Constitution." 
It  has  long  been  settled  that  a  criminal  law  must  be  so  clear 
and  specific  that  a  citizen  will  know  whether  the  act  which 
he  intends  to  do  will  violate  it.  "It  would  certainly  be 
dangerous,"  said  the  Supreme  Court  in  an  earlier  case  (1875), 


Its  Sources  and  Application  219 

"if  the  legislature  could  set  a  net  large  enough  to  catch  all 
possible  offenders,  and  leave  it  to  the  courts  to  step  inside 
and  say  who  could  be  rightfully  detained  and  who  should 
be  set  at  large.  This  would,  to  some  extent,  substitute 
the  Judicial  for  the  Legislative  Department  of  the  govern- 


155 


to  be  confronted  with  the  witnesses  against  him; 

^^^This  clause  was  framed  against  the  odious  practice 
which  had  prevailed  in  England  of  taking  the  depositions 
(written  testimony)  of  witnesses  and  reading  them  in  court. 
Not  only  was  the  accused  not  confronted  by  the  witnesses 
against  him,  but  he  was  necessarily  in  the  circumstances 
prevented  also  from  cross-examining  them.  The  illustrious 
Sir  Walter  Raleigh  was  condemned  to  death  in  the  reign 
of  James  I  on  the  written  testimony  of  a  single  witness  who 
had  in  the  meanwhile  recanted  his  accusation.  "On  how 
precarious  a  thread  the  life  of  every  man  is  suspended," 
wrote  Hallam  of  the  trial  of  the  Duke  of  Somerset  in  the 
reign  of  Henry  VIII,  whose  demand  for  confrontation  by 
witnesses  was  denied,  "when  the  private  deposition  of  one 
suborned  witness,  unconfronted  with  the  prisoner,  could 
suffice  to  obtain  a  conviction  in  the  case  of  treason." 

The  rule  of  the  law  of  Imperial  Rome  regarding  formal 
accusations  and  the  confrontation  by  witnesses  is  illustrated 
in  the  case-  of  St.  Paul.  Festus,  the  Roman  procurator 
of  Judea,  answered  Paul's  accusers  (Acts  XXV,  i6)  at  Jeru- 
salem, "It  is  not  the  manner  of  the  Romans  to  dehver  any 
man  to  die  before  that  he  which  is  accused  have  the  accusers 
face  to  face,  and  have  licence  to  answer  for  himself  concerning 
the  crime  laid  against  him."  When  Paul  was  sent  before 
Felix,  the  Roman  Governor  of  Caesarea  (Acts  XXIII,  35), 
and  the  governor  had  read  the  letter  of  accusation,  "I  will 
hear  thee,  said  he,  when  thin§  accusers  are  also  come." 

In  the  reign  of  Edward  VI  (1547-1553)  it  was  en- 
acted that  no  one  should  be  convicted  of   treason   ex- 


220  Constitution  of  the  United  States 

cept  on  the  testimony  of  two  lawful  witnesses  (Note  114) 
who  should  be  brought  in  person  before  the  accused  at  the 
time  of  his  trial  to  avow  and  maintain  what  they  had  to 
say  against  him.  Violations  of  this  right  cannot  come 
to  pass  in  the  United  States,  where  the  Constitution  is 
a  law  —  ''the  supreme  law  of  the  land"  —  and  where  it  is 
enforced  by  the  courts  Hke  every  other  law. 

As  it  was  well  established  in  law  at  the  time  the  Consti- 
tution was  drafted  that  the  dying  declaration  (because  the 
solemnity  of  the  circumstances  in  which  it  is  made  impels 
beHef)  of  a  witness  may  be  read  against  the  accused  at  the 
trial,  it  has  been  stated  by  the  Supreme  Court  (1897)  that 
the  rule  is  therefore  contained  in  this  clause. 

But  the  Supreme  Court  held  (1894),  following  a  Hke  de- 
cision in  Massachusetts,  that  the  protection  of  this  Amend- 
ment was  not  violated  by  the  reading  on  the  second  trial 
of  the  defendant  of  the  testimony  of  a  witness  who  had  since 
died  and  who  had  at  the  first  trial  confronted  the  defendant 
and  been  thoroughly  cross-examined  by  defendant's  coun- 
sel. The  Court  said  that  the  defendant  had  received  the 
substance  of  the  constitutional  protection  and  could  ask 
no  more. 

to  have  compulsory  process  for  obtaining  witnesses 
in  his  favor,  and  to  have  the  Assistance  of  Counsel 
for  his  defence.^ ^^ 

^^  It  was  not  until  the  reign  of  WilHam  IV  (1836)  that 
an  act  of  the  English  ParHament  gave  to  the  accused  the 
right  to  the  assistance  and  protection  of  counsel  in  all  cases 
of  felony,  that  is,  in  which  the  offense  is  punishable  by  im- 
prisonment or  death.  But  in  1696  a  bill  was  passed  by 
Parliament  allowing  counsel  to  persons  on  trial  for  high 
treason,  that  is,  offenses  against  the  royal  family  or  the 
government.  In  this  country  the  man  without  means  may 
have  witnesses  produced  to  testify  in  his  behalf.  The  court 
appoints  counsel  to  guard  his  legal  rights,  who  (being  an 


Its  Sources  and  Application  221 

officer  of  the  court)  must  serve  when  directed  to  do  so  and 
without  compensation.  Two  lawyers  of  high  repute  were 
thus  appointed  to  see  that  the  case  against  the  assassin  of 
President  McKinley  should  be  made  at  the  trial  in  con- 
formity with  the  settled  rules  of  law. 

ARTICLE  Vn. 

In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,^" 

^^^  Although  the  Constitutional  Convention  very  care- 
fully safeguarded  the  jury  trial  for  those  accused  of  crime 
(Note  no),  it  defeated  a  proposal  for  a  jury  trial  in  civil 
cases.  Suits  at  common  law  do  not  include  suits  in  chancery 
or  equity,  such  as  suits  for  injunction,  for  divorce,  for  en- 
forcing a  trust,  for  cancelKng  naturalization  papers,  for 
accounting,  for  specific  enforcement  of  a  contract,  and  for 
several  other  kinds  of  relief,  in  which  the  right  to  a  jury 
does  not  exist.  It  is  a  rather  common  practice  for  parties 
to  waive  a  jury  in  common  law  suits  or  actions  and  leave 
the  questions  of  fact  to  the  trial  judge  along  with  the 
questions  of  law.  Under  the  Workmen's  Compensation 
Acts  which  many  States  have  passed  an  injured  workman 
is  not  entitled  to  a  jury  to  determine  what  he  should  re- 
ceive. This  Amendment  does  not  Hmit  State  power.  It 
is  therefore  within  the  police  power  of  a  State  to  establish 
a  system  of  compensation  to  supersede  lawsuits  in  courts 
by  employees  seeking  from  employers  money  damages  for 
personal  injuries  suffered  in  the  course  of  employment. 

and  no  fg£t  tried  by  a  jury,  shall  be  otherwise  re- 
examined in  any  Court  of  the  United  States,  than 
according  to  the  rules  of  the  common  law.^^^ 

^^^  That  is,  these  rules  are*  (i)  the  granting  of  a  new  trial 
by  the  trial  court  and  a  hearing  before  another  jury,  or  (2)  a 


222  Constitution  of  the  United  States 

new  jury  trial  ordered  by  an  appellate  court  for  some  error 
of  law  committed  by  the  trial  court.  In  brief,  no  judge 
of  a  trial  court  can  substitute  his  opinion  of  the  facts  for 
that  of  the  jury,  nor  can  an  appellate  court  set  aside  the 
jury's  findings  and  make  a  final  order  on  its  own. 

ARTICLE  Vm. 

Excessive  bail  shall  not  be  required,i^^ 

^^^Long  imprisonments  which  had  been  made  possible 
by  excessive  bail  and  the  prevention  of  trials  had  so  offended 
the  English  people  that  when  William  III  and  Mary  as- 
cended the  throne  they  were  required  in  the  Declaration 
of  Rights  to  assent  to  a  provision  substantially  like  this 
clause  in  our  Constitution.  As  far  back  as  the  reign  of 
Henry  VI  (1444)  there  was  an  act  of  Parliament  requiring 
sheriffs  and  other  officers  to  "let  out  of  prison  all  manner 
of  persons  upon  reasonable  sureties  of  sufficient  persons." 
A  reasonable  bail  is  one  large  enough  to  prevent  evasion 
of  law  by  ffight  and  still  not  beyond  the  means  of  the  pris- 
oner. In  1835  bail  of  $1,000  was  fixed  by  a  court  for  a 
man  who  had  shot  at  President  Andrew  Jackson,  but  missed 
him.  The  court  thought  the  amount  sufficient  because 
the  offense  did  not  call  for  imprisonment,  no  battery  had 
been  done,  and  the  defendant  had  no  property.  The  court 
said  that  to  require  a  greater  bail  than  the  prisoner  could 
give  in  such  a  case  would  be  excessive  within  the  meaning  of 
the  Constitution. 

nor  excessive  fines  imposed/®° 

^^°  The  excessive  fine  under  Magna  Charta  was  the  pen- 
alty or  forfeiture  which  deprived  a  man  of  his  "con tene- 
ment" —  of  his  Uving  or  ability  to  pursue  his  calling  or  his 
business.  In  Magna  Charta  it  was  declared  that  "a  free 
man  shall  not  be  amerced  for  a  small  offense,  but  only  to 
the  degree  of  the  offense ;  and  for  a  great  delinquency,  a.  - 


Its  Sources  and  Application  223 

cording  to  the  magnitude  of  the  delinquency,  saving  his 
contenement."  Construing  a  similar  provision  in  a  State 
constitution,  the  Supreme  Court  held  void  an  act  of  the  leg- 
islature levying  a  penalty  of  not  less  than  $ioo  nor  more 
than  $500  upon  any  druggist  selKng  Hquors  contrary  to 
law,  and  imprisonment  of  not  less  than  ninety  days  nor 
more  than  one  year,  or  both,  with  debarring  from  business 
for  five  years  for  a  repeated  offense.  As  the  druggist  would 
be  cut  off  from  his  HveHhood  for  five  years,  the  punishment 
was  excessive.  The  Supreme  Court  of  the  United  States  held 
void  (1907)  an  act  of  the  legislature  of  a  State  imposing 
such  heavy  and  cumulative  fines  upon  railway  companies 
and  their  agents  for  failure  to  observe  the  freight  rates  and 
and  passenger  fares  prescribed  by  the  State  that  the  persons 
convicted  were  by  fear  prevented  from  resorting  to  the  courts 
to  determine  their  rights  or  to  test  the  vaHdity  of  the  law. 
The  heavy  fines  imposed  by  the  State  (which  could  not  be 
condemned  as  fines  under  this  limitation  upon  National 
power)  resulted  in  a  denial  of  due  process  of  law,  which 
by  the  Fourteenth  Amendment  (Note  173)  the  State  is  for- 
bidden to  deny. 

In  1909  the  Supreme  Court  sustained  a  judgment  for 
fines  and  penalties  rendered  under  State  law  aggregating 
$1,623,500,  and  the  cancellation  of  the  defendant's  permit 
to  participate  in  commerce  within  the  State.  The  company, 
incorporated  in  another  State,  was  convicted  of  violating 
the  anti-trust  laws  of  the  complaining  State.  Fines  imder 
one  law  were  permitted  as  high  as  $5,000  a  day  for  each 
day  of  violation.  The  Supreme  Court  said  that  the  Eighth 
Amendment,  forbidding  excessive  fines,  is  not  a  prohibition 
upon  the  State. 

nor  cruel  and  unusual  punishments  infiicted.^^^ 

^^^  As  late  as  Blackstone'a  time  (1758)  "the  punishment 
of  high  treason  in  general  is  very  solemn  and  terrible."  He 
says  that  the  guilty  person  was  hanged  by  the  neck  and 


224  Constitution  of  the  United  States 


then  cut  down  alive,  when  he  was  disemboweled  while  yet 
living.  His  head  was  cut  off  and  his  body  divided  into  four 
parts  for  disposition  by  the  king.  By  an  act  of  Parlia- 
ment in  1 8 14,  a  quarter  of  a  century  after  our  Constitution, 
that  punishment  was  mitigated. 

Hallam  gives  many  instances  of  cuttmg  off  of  the  ears, 
of  whipping,  of  standing  in  the  pillory,  of  slitting  the  nose, 
of  branding  the  cheek.  And  many  of  those  punishments 
were  followed  by  ''perpetual  imprisonment."  But  he  says 
that  punishments  on  the  Continent  were  even  more  severe. 

The  protection  of  this  clause  is  needed  now,  perhaps  not 
so  much  as  formerly,  but  it  is  needed.  In  February,  19 10, 
the  Supreme  Court  of  Oregon  held  void  an  act  of  the  legisla- 
ture for  conflict  with  a  provision  of  the  State's  constitution 
similar  to  this  of  the  Eighth  Amendment.  An  officer  of  the 
State  who  was  unable  to  pay  a  fine  of  over  $577,000,  which 
was  imposed  upon  him  for  misapplying  State  funds,  was 
therefore  sentenced  under  a  State  law  to  five  years  in  the 
penitentiary,  and  the  fine  was  to  be  discharged  by  an  ad- 
ditional imprisonment  in  jail  at  $2  for  each  day.  The  act 
was  upheld  as  to  the  sentence  to  the  penitentiary,  but  it 
was  declared  void  as  to  the  jail  sentence  for  "not  ex- 
ceeding 288,426  days",  a  term  of  nearly  800  years.  In  1891 
the  Supreme  Court  of  the  United  States  held  that,  as  the 
Eighth  Amendment  does  not  apply  to  States,  it  could  give 
no  relief  to  a  man  who  had  been  sentenced  to  the  house  of 
correction  in  Vermont  for  19,914  days  or  fifty-four  years, 
for  shipping  Kquor  from  New  York  into  the  first-named 
State.  And  as  late  as  191 6  the  flogging  of  a  convict  in  North 
Carolina  was  held  by  the  Supreme  Court  of  that  State  to 
be  illegal  under  the  State  Constitution,  the  Chief  Justice 
saying  that  the  record  contained  "unprintable  evidence 
of  brutaHty  almost  beyond  conception." 

The  Bill  of  Rights  of  the  Philippine  Islands  forbids  the 
infliction  of  cruel  and  unusual  punishment,  adopting  this 
provision  from  our  Constitution.    The  Supreme  Court  of 


Its  Sources  and  Application  9,%5 

the  United  States  held  (1910)  that  this  safeguard  of  the 
citizen  was  violated  where  an  officer  of  the  government 
who  had  been  convicted  of  making  false  entries  in  the  public 
records  was  subjected  to  a  heavy  fine,  sentenced  to  imprison- 
ment for  fifteen  years,  and  condemned  to  carry  a  chain  at- 
tached at  the  ankle  and  hanging  from  the  wrist.  Answering 
the  contention  that  the  cruel  and  unusual  punishments 
referred  to  in  this  clause  of  our  Constitution  and  in  the  Bill 
of  Rights  of  the  PhiHppines  are  those  which  were  known 
in  the  time  of  the  Stuart  kings  when  the  American  Colonies 
were  being  planted,  the  Supreme  Court  said  that  the  lan- 
guage, while  used  in  the  Hght  of  "an  experience  of  evils", 
is  nevertheless  general  and  i&  intended  to  apply  to  new  con- 
ditions. "Therefore,"  said  the  Court,  "a  principle  to  be 
vital  must  be  capable  of  wider  applicatlbn  than  the  mis- 
chief which  gave  it  birth.  This  is  peculiarly  true  of  con- 
stitutions." 

The  Supreme  Court  has  steadily  refused  to  apply  this 
Amendment  as  a  prohibition  upon  State  action;  and  it, 
therefore,  held  that  punishment  by  electrocution  is  within 
the  State  power  and  cannot  be  considered  cruel  or  unusual 
under  this  clause. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution,  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people.^ ^^ 

^^2  This  is  a  statement  of  the  rule  of  construction  that 
an  aflirmation  in  particular  cases  implies  a  negation  in  all 
others.  The  Amendment  indicates  that  the  National 
Government  is  one  of  delegated  and  enumerated  powers 
and  that  the  powers  named  (with  the  necessarily  impHed 
powers)  are  all  that  the  United  States  possesses  or  may 
presume  to  exercise.  A  step  beyond  the  enumeration  is 
unconstitutional  and  void. 


226  Constitution  of  the  United  States 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  peo- 
ple.i«3 

^^^"The  reservation  to  the  States  respectively,"  says 
the  Supreme  Court,  ^'can  only  mean  the  reservation  of  the 
rights  of  sovereignty  which  they  respectively  possessed 
before  the  adoption  of  the  Constitution  of  the  United  States 
and  which  they  had  not  parted  from  by  that  instrument. 
And  any  legislation  by  Congress  beyond  the  limits  of  the 
power  delegated  would  be  trespassing  upon  the  rights  of 
the  States  or  the  people  and  would  not  be  the  supreme  law 
of  the  land,  but  null  and  void." 

Thus  if  North  Carolina  and  Rhode  Island,  which  did  not 
ratify  the  Constitution  until  after  the  new  government  had 
become  operative,  had  chosen  not  to  enter  the  Union,  they 
would  have  had  the  powers  inhering  in  independent  govern- 
ments, such  as  the  power  to  declare  war,  to  coin  money,  to 
raise  armies,  to  make  treaties,  to  regulate  commerce,  to 
impose  duties  on  imports  and  exports,  and  so  on,  —  all  of 
which  were,  under  the  Constitution,  for  the  general  welfare, 
yielded  up  to  the  National  Government. 

This  Amendment  and  the  preceding  one  "disclosed  wide- 
spread fear  that  the  National  Government  might,  under 
the  pressure  of  the  supposed  general  welfare,  attempt  to 
exercise  powers  which  had  not  been  granted." 

"I  ask  for  no  straining  of  words  against  the  General 
Government,"  wrote  Jefferson  in  1823,  "nor  yet  against 
the  States.  I  believe  the  States  can  best  govern  over  home 
concerns  and  the  General  Government  over  foreign  ones. 
I  wish,  therefore,  to  see  maintained  that  wholesome  dis- 
tribution of  powers  established  by  the  Constitution  for  the 
limitation  of  both,  and  never  to  see  all  offices  transferred 
to  Washington." 


Its  Sources  and  Application  227 

fn  the  "Federalist"  (No.  XVIII)  Madison  had  expressed 
the  view  of  the  other  party.  He  reviewed  fully  the  Am- 
phictyonic  Council  of  ancient  Greece  to  show  that  "it  em- 
phatically illustrates  the  tendency  of  federal  bodies  rather 
to  anarchy  among  the  members  than  to  tyranny  in  the  head." 

In  191 1,  discussing  also  the  unsurrendered  powers  of 
the  States,  the  Supreme  Court  used  this  language : 

"Among  the  powers  of  the  State  not  surrendered  — 
which  power  therefore  remains  with  the  State  —  is  the  power 
to  so  regulate  the  relative  rights  and  duties  of  all  within  its 
jurisdiction  as  to  guard  the  public  morals,  the  public  safety, 
and  the  public  health,  as  well  as  to  promote  the  public  con- 
venience and  the  common  good." 

In  Canada,  on  the  contrary,  the  State  (province)  has 
no  powers  except  those  which  are  specified  as  belonging  to 
it,  all  other  powers  being  in  the  Dominion  (or  National) 
Government.  But  thirty- three  years  later  (1900)  the 
Australians  followed  our  plan  rather  than  that  of  Canada 
and  declared  in  their  constitution  that  powers  not  given  to 
the  Commonwealth  (or  Nation)  remain  in  the  States. 

The  Migratory  Bird  Act  of  July  3,  1918,  passed  by  Con- 
gress in  pursuance  of  a  treaty  (19 16)  with  Great  Britain 
for  the  protection  of  birds  in  their  annual  migrations  be- 
tween Canada  and  this  country,  did  not  violate,  the  Supreme 
Court  held  (1920),  the  reservation  in  the  Tenth  Amend- 
ment of  power  to  the  States.  The  claim  was  made  that 
the  State  had  property  in  the  wild  birds,  but  the  Court  an- 
swered that  "the  subject-matter  is  only  transitorily  within 
the  State."  An  act  of  1913  had  been  held  by  some  of  the 
Federal  courts  invalid,  and  it  was  contended  that  "such 
an  act  cannot  be  made  valid  by  a  treaty."  The  Supreme 
Court  of  course  held  the,  treaty  to  be  the  supreme  law  of 
the  land  (See  Note  133). 

This  is  the  last  of  the  T«n  Amendments,  written  in  re- 
straint of  National  power  against  the  people  and  the  States, 
in  addition  to  like  curbs  in  the  body  of  the  Constitution. 


228  Constitution  of  the  United  States 

ARTICLE   XI. 

Proposed  by  Congress  September  5,  1794;  proclaimed  adopted 
January  8,  itqS. 

The  Judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United 
States  by  Citizens  of  another  State,  or  by  Citizens  or 
Subjects  of  any  Foreign  State.^^^ 

^^^  This  Amendment  was  proclaimed  as  adopted  on  Jan- 
uary 8,  1798,  following  suit  by  a  claimant  in  South  Caro- 
lina against  the  State  of  Georgia,  decided  in  1793.  Many 
of  the  States  were  under  heavy  financial  embarrassment 
when  the  Union  was  formed  and  the  case  of  Chisholm  against 
Georgia  excited  much  alarm.  Although  a  resolution  pro- 
posing an  Amend^nent  was  passed  by  Congress  two  days 
after  the  decision  was  announced,  the  Eleventh  Amend- 
ment did  not  become  a  part  of  the  Constitution  for  almost 
five  years.  The  Australian  constitution  expressly  grants 
jurisdiction  to  the  High  Court  where  a  citizen  desires  to  sue 
a  State. 

ARTICLE  Xn.i65 

Proposed  by  Congress  December  12,  1803;  proclaimed  adopted 
September  25,  1804.  ' 

^^^  See  Notes  76,  77,  78,  and  79.  The  chief  difference 
between  this  Amendment  and  the  language  which  it  super- 
seded is  that  the  elector  votes  for  a  named  individual  for 
President  and  another  for  Vice  President.  Under  the  old 
provision  the  elector  voted  *'for  two  persons",  without 
designating  either  for  either  office.  "The  person  having 
the  greatest  number  of  votes"  became  President  and  the 
one  receiving  next  to  the  highest  number  became  Vice  Pres- 
ident, notwithstanding  that,  as  in  the  case  of  Jefferson, 
he   might  be   an   intense   disbehever  in   the   President's 


Its  Sources  and  Application  229 

(Adams's)  political  opinions.  When,  at  the  next  election, 
Jefferson  and  Burr  received  the  same  number  of  electoral 
votes  and  the  election  therefore  was  thrown  into  the  House 
of  Representatives,  where  thirty-five  ballots  were  taken 
before  the  choice  of  first  place  fell  to  Jefferson,  the  second 
place  thereby  going  to  Burr,  the  people  became  convinced 
that  a  change  in  the  electoral  machinery  was  necessary. 
Now,  under  this  Amendment,  the  electors  "name  in  their 
ballots  the  person  voted  for  as  President,  and  in  distinct  bal- 
lots the  person  voted  for  as  Vice  President."  When  the 
election  of  a  President  is  now  thrown  into  the  House  of  Rep- 
resentatives, that  body  makes  choice  "from  the  persons 
having  the  highest  numbers,  not  exceeding  three  on  the  list 
of  those  voted  for";  before  the  choice  was  made  "from 
Xh^five  highest  on  the  Hst." 

The  Electors  shall  meet  in  their  respective  states 
and  vote  by  ballot  for  President  and  Vice-President, 
one  of  whom,  at  least,. shall  not  be  an  inhabitant  of 
the  same  state  with  themselves ;  they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Vice-Presi- 
dent, and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  President,  and  of  all  persons  voted  for 
as  Vice-President,  and  of  the  dumber  of  votes  for  each, 
which  lists  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Sena^p ;  ^^^ 

^^®An  Act  of  Congress  of  i888#:equires  the  certificates 
to  be  forward^  "forthwith"  after  the  second  Monday  of 
January,  on  which  day  the  electors  must  cast  their  votes. 

—  the  President  of  the  S^ate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates  and  the  votes  shall  then  be  counted ;  ^^^ 


230  Constitution  of  the  United  States 

^^^  A  controversy  which  threatened  the  peace  of  the  coun- 
try arose  in  1876  respecting  the  electoral  vote  for  Ruther- 
ford B.  Hayes,  the  Republican  candidate  for  the  presidency, 
and  that  cast  for  Samuel  J.  Tilden,  the  nominee  of  the  Dem- 
ocratic party.  In  Louisiana  two  electoral  returns  were 
made  under  rivals  claiming  to  be  governor.  The  legality 
of  the  returns  made  in  some  other  States  to  the  president 
of  the  Senate  also  was  questioned.  The  claim  was  made 
that  the  president  of  the  Senate  (who  was  then  a  Republican) 
should,  under  this  clause,  do  the  counting.  On  many  points 
the  disagreement  between  the  partisans  was  so  wide  and 
apparently  so  hopeless  that  it  was  finally  determined  to 
leave  all  questions  to  an  Electoral  Commission  to  be  created 
by  act  of  Congress  and  to  consist  of  five  members  of  the 
Senate,  five  members  of  the  House,  and  five  justices  of  the 
Supreme  Court.  That  Colnmission,  after  an  extended 
hearing  of  evidence  and  argument,  found,  by  a  strictly  par- 
tisan vote,  that  185  electoral  votes  belonged  to  Hayes  and 
184  to  Tilden.  To  prevent  the  recurrence  of  some  of  the 
questions.  Congress  passed  the  Electoral  Count  Act  of  Feb- 
ruary 3,  1887,  providing  (i)  that  if  there  has  been  in  a  State 
a  final  determination  of  any  electoral  controversy,  the  Gov- 
ernor shall  certify  the  decision  to  the  Secretary  of  State, 
who  shall  transmit  the  information  to  the  first  meeting  of 
Congress ;  (2)  that  if  more  than  one  return  of  vote  should 
be  made  by  a  State  to  the  president  of  the  Senate,  that  one 
shall  be  counted  which  was  delivered  by  the  regular  electors ; 
(3)  that  when  the  question  is  which  of  two  election  boards 
in  a  State  is  regular,  that  one  will  be  recognized  which  the 
Senate  and  the  House  decide  to  be  the  one  authorized  by 
law,  (4)  but  if  the  Houses  disagree,  then  th^  electors  certi- 
fied by  the  Governor  of  the  State  shall  be  accepted ;  (5)  that 
Congress  shall  sit  iif  joint  session  in  the  House  of  Repre- 
sentatives at  one  o'clock  in  the  afternoon  of  the  second 
Wednesday  in  February  following  the  meeting  of  electors ; 
(6)  that  there  shall  be  two  tellers  for  the  Senate  and  two  for 


Its  Sources  and  Amplication  231 

the  House,  who  shall  receive  from  the  president  of  the  Sen- 
ate the  election  returns  from  each  State  as  he  opens  them 
in  alphabetical  order  and  who  shall  read  the  returns  in  the 
hearing  of  the  joint  session  and  make  lists  of  the  results 
and  give  them  to  the  president  of  the  Senate  for  announce- 
ment; (7)  and  that  the  president  of  the  Senate  shall  call 
for  objections  in  writing  of  any  State  for  consideration  by- 
each  House. 

One  purpose  of  the  Electoral  Count  Act  (1887)  was  to 
throw  upon  each  State  as  far  as  possible  responsibihty  for 
determining  how  its  vote  should  be  counted. 

—The  person  having  the  greatest  number  of  votes  for 
President  shall  be  the  President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed; 
and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  Presi- 
dent the  votes  shall  be  taken  by  states,  the  represen- 
tation from  each  state  having  one  vote ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  necessary  to  a  choice.  And  if  the 
House  of  Representatives  shall  not  cljoose  a  Presi- 
dent whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following, 
then  the  Vice-President  shall  act  as  President,  as  in 
the  case  of  the  death  or  other  constitutional  disabil- 
ity of  the  President.  The  person  having  the  great- 
est number  of  votes  as  Vice-President,  shall  be  the 
Vice-President,  if  such  number  be  a  majority  of  the 
whole  number  of  Electors  appointed,  and  if  no  per- 


232  Constitution  of  the  United  States 

son  have  a  majority,  then  from  the  two  highest  num- 
bers on  the  list,  the  Senate  shall  choose  the  Vice- 
President  ;  a  quorum  for  the  purpose  shall  consist  of 
two-thirds  of  the  whole  number  of  Senators,  and  a 
majority  of  the  whole  number  shall  be  necessary 
to  a  choice.  But  no  person  constitutionally  ineligible 
to  the  office  of  President  shall  be  eligible  to  that 
of  Vice-President  of  the  United  States. 

ARTICLE   Xni.168 

Proposed  by  Congress  February  i,  1865,  proclaimed  adopted 
December  18,  1865. 

^^  It  has  been  pointed  out  that  the  first  ten  Amendment^ 
sprang  from  the  fear  of  National  power  which  many  of  the 
States  possessed.  Those  Amendments  were  designed  to 
stay  thg  National  hand.  But  the  Civil  War  taught  that  the 
Nation  may  be  in  even  greater  peril  from  the  States  than 
they  ever  were  from  the  Nation.  And  so,  after  more  than 
seventy  years,  the  people,  by  this  Amendment  and  the  two 
Amendments  following,  laid  up^n  the  States  restrictions 
which  a  few  years  before  would  have  been  impossible.  The 
country  had  gone  sixty-one  years  (1804-1865)  without  an 
Amendment. 

Section  i.  Neither  slavery  nor  involuntary  servi- 
tude, except  ^s  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States,  or  any  place  subject  to  their  juris- 
diction.^ ^^ 

^^^  The  language  of  this  Amendment  is  older  than  the 
Constitution  itself.  On  July  13,  1787,  the  Congress  under 
the  Articles  of  Confederation  passed  the  oi:dinance  creating 
the  Northwest  Territory  (Ohio,  Illinois,  Indiana,  Michigan, 
and  Wisconsin),  which  provided:  *' There  shall  be  neither 


Its  Sources  and  Application  233 

slavery  nor  involuntary  servitude  in  the  said  territory  other- 
wise dian  in  punishment  of  crimes,  whereof  the  party  shall 
have  been  duly  convicted."  But  a  proviso  required  the 
return  from  the  territory  of  fugitive  slaves. 

When,  on  January  13,  1865,  a  two-thirds  vote  was  taken 
in  the  House  of  Representatives  for  proposing  the  Thir- 
teenth Amendment  ^'in  honor  of  the  immortal  and  sublime 
event"  the  House  adjourned. 

Congress  had  previously  aboKshed  slavery  in  the  District 
of  Columbia  and  in  the  Territories,  had  repealed  the  Fugi- 
tive Slave  Law,  and  had  given  freedom  to  the  Negroes  who 
had  served  in  the  Union  armies. 

The  Emancipation  Proclamation  freed  the  slaves  only  in 
the  seceded  States,  excepting  some  parishes  (counties)  in 
Louisiana,  a  few  counties  in  Virginia,  and  the  whole  of  Ten- 
nessee. Besides,  the  vahdity  of  the  proclamation  under 
the  war  power  of  the  President  was  questioned.  To  remove 
the  legal  doubt  and  to  liberate  slaves  everywhere  the  Amend- 
ment was  adopted. 

Of  the  Thirteenth  Amendment  a  Federal  court  said : 

*'It  trenches  directly  upon  the  power  of  the  States  and 
of  the  people  of  the  States.  It  is  the  first  and  only  instance 
of  a  change  of  this  chartyter  in  the  organic  law.  It  de- 
stroyed the  most  important  relation  between  capital  and 
labor  in  all  the  States  where  slavery  existed.  It  affected 
deeply  the  fortunes  of  a  large  portion  of  their  people.  It 
struck  out  of  existence  millions  of  property.  The  measure 
was  the  consequence  of  a  strife  of  opinions,  and  a  conflict 
of  interests,  real  or  imaginary,  as  old  as  the  Constitution 
itself.  These  elements  of  discord' grew  in  intensity.  Their 
violence  was  increased  by  the  throes  and  convulsions  of  a 
civil  war.  The  impetuous  vortex  finally  swallowed  up  the 
evil,  and  with  it  forever  the  power  to  restore  it. " 

A  law  of  a  State  under  which  one  fined  for  a  misdemeanor 
confessed  judgment  and  agreed  to  work  out  the  fine  for  the 
surety  who  paid  it  for  him  was  held  by  the  Supreme  Coujt 


234  Constitution  of  the  United  States 

(1914)  to  be  unconstitutional  as  creating  "involuntary  ser- 
vitude" in  violation  of  this  Amendment. 

A  person  who  hired  another  under  a  contract  by  which 
the  hirer  had  the  right  to  imprison  the  worker  or  keep  him 
under  guard  until  the  contract  should  be  performed  was 
held  (1903)  by  a  Federal  court  to  violate  the  Peonage  Act 
of  Congress  (1909)  passed  under  this  Amendment.  And 
so  it  was  held  (1907)  of  a  State  law  making  it  a  misdemeanor 
punishable  by  imprisonment  for  one  to  agree  to  perform 
service  and  then,  after  receiving  a  part  of  the  consideration 
in  advance,  refuse  to  perform. 

Thus  it  is  seen  from  very  late  cases  that  this  provision  is 
still  vital  and  active. 

But  in  many  cases  it  has  been  held  that  city  ordinances 
requiring  persons  conmiitted  to  the  city  prison  to  work  out 
their  fines  in  the  streets  or  elsewhere  do  not  violate  this 
Amendment. 

Section  2.  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation.^  ^° 

^^°  Congress  passed  under  this  constitutional  authority 
the  Civil  Rights  Act  of  March  i,  1875,  another  act  prohib-' 
iting  peonage,  and  some  other  statutes.  The  first  and 
second  sections  of  the  Civil  Rights' Act  of  Congress  were 
held  (1888)  by  the  Supreme  Court  in  contravention  of  this 
Amendment,  which  is  a  regulation  of  the  States  with  regard 
to  slavery,  and  which  does  not  authorize  Congress  to  reg- 
ulate the  conduct  of  individuals  who  prevent  Negroes  from 
having  the  full  and  equal  enjoyment  of  hotels,  theatres, 
and  other  public  places.  Legislation  of  this  kind  comes 
within  the  police  power  of  the  State.  In  many  of  the  States 
there  has  been  legislation  requiring  the  providing  of  separate 
but  equal  accommodations  for  white  persons  and  Negroes. 
Such  regulations  have  been  held  valid  as  essential  to  pub- 
lic order. 


Its  Sources  and  Application  235 

The  Supreme  Court  has  said  that  while  the  object  of  this 
Amendment  was  undoubtedly  to  enforce  the  absolute  equal- 
ity of  the  two  races  before  the  law,  "in  the  nature  of  things 
it  could  not  have  been  intended  to  abolish  distmctions  based 
upon  color,  or  to  enforce  social,  as  distinguished  from  polit- 
ical equality,  or  a  commingling  of  the  two  races  upon  terms 
unsatisfactory  to  either."  The  Court  said  that  laws  per- 
mitting and  even  requiring^ separation  did  jiot  imply  the 
inferioritjroT either  face^  the  other,  and  such  laws  had 
been  generatty,  if  not  universally,  recognized  as  within  the 
competency- x>f  State  legislatures  in  the  exercise  of  their 
police  powers. 


ARTICLE  XIV. 

Proposed  by  Congress  June  1 6,  1866;  proclaimed  adopted  July 
21,  1868. 

Section  i.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.^^^ 

^^^  The  Thirteenth  Amendment  was  found  to  be  not 
enough.  Reviewing  the  history  of  the  times,  the  Supreme 
Court  pointed  out  that  in  some  States  the  former  slaves 
were  "forbidden  to  appear  in  the  towns  in  any  other  char- 
acter than  menial  servants";  that  they  were  required  to 
reside  upon  an^  cultivate  the  land  "without  the  right  to 
purchase  or  own  it" ;  that  they  were  excluded  from  many 
occupations  of  gain  and  were  "not  permitted  to  give  testi- 
mony in  the  courts  in  any  case  where  a  white  man  was  a 
party";  that  laws  were  passed  imposing  heavy  fines  on 
vagrants  and  loiterers,  who,  if  unable  to  pay  the  fines,  were 
sold  to  the  highest  bidder.  '"These  circumstances,"  said 
the  Supreme  Court,  "whatever  of  falsehood  or  misconcep- 


236  Constitution  of  the  United  States 

tion  may  have  been  mingled  with  their  presentation,  forced 
upon  the  statesmen  who  had  conducted  the  Federal  Govern- 
ment in  safety  through  the  crisis  of  the  rebellion  and  who 
supposed  that  by  the  Thirteenth  Article  of  Amendment  they 
had  secured  the  result  of  their  labors,  the  conviction  that 
something  more  was  necessary  in  the  way  of  constitutional 
protection  to  the  unfortunate  race  who  had  suffered  so 
much." 

Hence  the  Fourteenth  Amendment. 

This  Amendment  made  the  Negro  not  only  a  citizen  of 
the  United  States  but  also  of  the  State  of  his  residence.  It 
struck  the  word  "white"  from  the  constitutions  of  northern 
States  which  had  limited  citizenship  to  white  males.  In 
North  and  South  the  Negro  became  possessed  in  law  of  all 
the  rights  of  citizenship. 

The  citizen  was  not,  under  the  theory  of  States'  rights, 
in  contact  with  the  National  Government.  He  owed  al- 
legiance to  his  State,  and  the  State  dealt  with  the  Nation. 
That  theory  was  definitely  set  aside  by  this  Amendment, 
which  made  all  persons  bom  or  naturalized  in  the  United 
States  and  subject  to  the  jurisdiction  thereof  citizens  of 
both  the  Nation  and  the  State,  owing  allegiance  to  both 
authorities.  James  Wilson  of  Pennsylvania  stated  (Note 
19)  this  doctrine  clearly  in  the  Constitutional  Convention. 

The  contention  was  made  in  the  first  great  case  to  arise 
under  this  Amendment,  which  did  not  involve  the  Negro 
at  all,  the  controversy  being  between  rival  business  houses, 
that  the  Amendment  originated  a  ne\Y  citizenship  for  all, 
which  supplanted  former  State  citizenship  and  changed 
the  rights  attending  it.  That  would  mean  that  the  Na- 
tional Government  would  now  be  the  source  of  all  those 
rights  of  a  fundamental  character  which  belong  to  the  citi- 
zens of  all  free  governments  by  virtue  of  their  manhood, 
and  for  the  protection  (not  creation)  of  which  all  just  govern- 
ments are  formed.  The  Supreme  Court  rejected  (1873) 
the  contention  and  said  that  the  Amendment  did  not  dis- 


Its  Sources  and  Application  237 

close  *'any  purpose  to  destroy  the  main  features  of  the  gen- 
eral system."  It  held  that  the  command  that  ^'no  State 
shall  .  .  .  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States"  does  not  prevent  a  State  from 
abridging  privileges  of  State  citizenship  as  distinguished 
from  privileges  of  National  citizenship.  This  momentous 
decision,  involving  the  preservation  of  State  citizenship 
and  State  rights,  was,  like  that  upholding  the  power  of  the 
President  in  the  Civil  War  to  blockade  ports  and  take  any 
steps  necessary  to  preserve  the  Hfe  of  the  Nation,  rendered 
by  a  majority  of  one  vote. 

In  the  Dred  Scott  case  (1856),  brought  by  a  negro  serv- 
ant of  a  surgeon  in  the  United  States  army,  who  had  been 
taken  into  Illinois  and  other  free  territory  and  who  claimed 
for  that  reason  the  right  to  liberty,  as  the  negro  slave  Somer- 
set had  by  the  decision  of  Lord  Mansfield  been  liberated 
when  he  was  taken  from  Virginia  to  England,  the  Supreme 
Court  held  that  the  Negro  was  "not  intended  to  be  included 
under  the  word  'citizen'  in  the  Constitution",  for  which 
reason  he  had  no  standing  in  court.    By  this  Amendment  , 
he  became  a  citizen  of  the  Nation  and  a  citizen  of  his  State,  J 
and  possessed  of  the  benefits  of  all  State  and  National  con-  I 
stitutions  and  laws.     The  fugitive  slave  provision  (Note  I 
121)  was  inserted  in  the  Constitution  to  prevent  the  appli-' 
cation  in  this  coimtry  of  the  rule  announced  in  the  Somer- 
set case. 

"While  the  Fourteenth  Amendment  was  intended  pri- 
marily for  the  bene%  of  the  negro  race,"  said  a  Federal 
court,  "it  also  confers  the  right  of  citizenship  upon  per- 
sons of  all  other  races,  .  .  .  born  or  naturalized  in  the 
United  States."  But  a  person  born  in  the  United  States 
and  not  "subject  to  the  jurisdiction  thereof"  does  not 
become  a  citizen,  such  as  the  child  of  a  foreign  minister  or 
consul. 

The  refusal  of  Congress  to  permit  the  naturalization  of 
Chinese  was  held  by  the  Supreme  Court  (1898)  not  to  ex- 


238  Constitution  of  the  United  States 

elude  from  the  benefit  of  this  Amendment  a  Chinese  "born 
...  in  the  United  States  and  subject  to  the  jurisdiction 
thereof."  While  the  parents  were  subjects  of  the  Emperor 
of  China,  they  were  permanently  domiciled  in  the  United 
States  and  carrying  on  business.  The  definition  of  "  citi- 
zen" in  this  Amendment  is  only  an  affirmation  of  the  an- 
cient rule  of  citizenship  by  birth  within  the  territory  of 
allegiance.  The  aHen  owes  allegiance  to  the  country  of 
his  residence  —  he  is  "subject  to  the  jurisdiction  thereof" 
—  and  therefore  his  children  become  citizens  by  birth. 

Notwithstanding  this  Amendment,  it  was  held  by  the 
Supreme  Court  (191 5)  to  be  within  the  power  of  Congress 
to  pass  the  Act  of  1907  declaring  that  an  American  woman 
marrying  a  foreigner  should  forfeit  her  citizenship  in  the 
United  States;  and  this  although  she  remained  in  the 
United  States. 

After  the  Fourteenth  Amendment  was  adopted  a  woman 
in  Missouri,  where  the  right  to  vote  was  limited  to  males, 
sued  the  registrar  because  he  refused  (1872)  to  put  her  name 
on  the  list  of  voters.  She  contended  that  as  she  was  a  "  citi- 
zen of  the  United  States"  under  the  Amendment,  the  State 
could  not  "abridge"  her  right  as  such  citizen  to  vote  for 
the  presidential  electors.  The  Supreme  Court,  denying 
her  claim  (1874),  said  that  as  she  was  a  citizen  born  of  citi- 
zen parents  before  the  Amendment,  her  status  with  respect 
to  voting  was  not  changed  by  it,  because  the  right  to  vote 
before  the  Amendment  was  not  necessarily  one  of  the  priv- 
ileges or  immunities  of  citizenship^  That  was  demon- 
strated by  the  necessity  for  the  Fifteenth  Amendment,  which 
protected  the  Negro  from  being  excluded  from  voting  be- 
cause of  color.  That  Amendment  did  not  affect  the  Negro's 
wife,  who  remained  debarred  on  account  of  sex.  But  she 
became  entitled  to  vote  when  the  Nineteenth  Amendment 
removed  that  bar. 

No  State  shall  make  or  enforce  any  law  which  shall 


Its  Sources  and  Application  239 

abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States  ;i72 

^^2  This  was  held  by  the  Supreme  Court  to  mean,  as  the 
language  imports,  the  privileges  and  immunities  of  National 
citizenship  and  not  to  include  those  belonging  to  the  citi- 
zen of  the  State.  It  is  a  prohibition,  not  respecting  action 
by  an  individual  or  by  a  group  of  individuals,  but  only  ac- 
tion by  the  legislative,  the  executive,  or  the  judicial  depart- 
ment of  a  State  government.  The  Supreme  Court  held 
(1897)  that  the  State  acted,  and  not  the  individual,  where 
the  law  empowered  the  county  judge  to  select  jurors  and 
he  rejected  Negroes.  But  not  so  where  in  another  State 
white  jurors  only  were  selected,  there  being  no  State  law 
on  the  subject ;  that  action  was  by  individuals.  This  com- 
mand is  not  violated  by  State  laws  fairly  regulating  the 
qualifications  of  jurors. 

The  fundamental  rights  protected  by  the  first  ten  Amend- 
ments against  National  invasion  were  not,  the  Supreme  Court 
has  said  (1900),  by  this  clause  converted  into  or  superseded 
by  rights  or  immunities  which  the  State  cannot  touch. 
State  action  is  no  further  restrained  than  it  was  before,  ex- 
cept in  the  particulars  clearly  within  the  purpose  of  this 
Amendment.  Accordingly  a  State  law  Hmiting  the  length 
of  a  day's  work  in  mines  and  smelters  was  held  (1896)  by 
the  Supreme  Court  to  deny  no  National  immunity  or  privi- 
lege of  the  employer  under  this  clause.  The  subject  in- 
volved in  that  case  was  one  affecting  the  citizen  of  the  State 
and  not  the  citizen  of  the  United  States.  The  relation  be- 
tween employer  and  employe  is  one  to  be  supervised  by 
the  police  power  of  the  State,  except  that  the  Nation, 
under  the  commerce  clause,  has  dealt  with  the  safety,  the 
hours,  and  the  wages  of  employes  of  railways  in  interstate 
commerce. 

The  laws  enacted  by  the  States  for  the  benefit  of  the 
working  classes  have  been  generally  held  by  the  Supreme 


240  Constitution  of  the  United  States 

Courts  of  the  States  not  to  deny  to  the  employer  any  con- 
stitutional privilege,  and  the  Supreme  Court  of  the  United 
States  has  sustained  such  decisions  when  cases  have  been 
carried  to  it.  The  Supreme  Court  held  (191 7)  that  no  privi- 
lege or  immunity  of  National  citizenship  was  abridged  by 
a  State  law  limiting  the  length  of  the  day  of  workers,  or  by 
another  law  fixing  minimum  wages.  While  the  right  to 
labor  and  the  privilege  of  organizing  are  fundamental,  under 
State  citizenship,  they  are  secured  by  State  law  and  not 
by  this  Amendment.  The  Supreme  Court  upheld  (1915) 
the  law  of  a  State,  which  was  challenged  as  abridging  the 
privilege  of  citizens  of  the  United  States  under  this  clause, 
requiring  that  only  citizens  of  the  United  States  be  employed 
on  pubHc  works  and  that  citizens  of  the  State  be  preferred. 
But  while  the  State  as  an  employer  may  thus  select  its  em- 
ployes, it  cannot  control  other  employers ;  and  a  State  con- 
stitutional provision  requiring  that  eighty  per  cent  of  the 
employes  in  mines  and  smelters  be  natives  of  the  United 
States  was  held  by  the  Supreme  Court  (1915)  to  "abridge 
the  privileges"  of  naturalized  citizens  of  the  United 
States  in  violation  of  this  clause. 

The  privilege  of  a  child  to  attend  the  public  schools  is 
one  springing  from  the  State  and  not  the  Nation,  and  there- 
fore the  child  cannot  assert  a  constitutional  right  to  admis- 
sion under  this  clause.  Nor  is  it  the  denial  of  a  privilege 
of  National  citizenship,  the  Supreme  Court  held  (191 5),  for 
a  State  to  enact  that  a  student  entering  its  university  must 
renounce  his  allegiance  to  any  Greek-letter  or  Hke  frater- 
nity. And  so  the  right  to  bear  arms  guaranteed  by  the  Sec- 
ond Amendment  against  National  interference,  is  not 
(1886)  one  of  the  "privileges  or  immunities"  belonging  to 
citizens  of  the  United  States,  as  distinguished  from  citizens 
of  a  State.  Should  the  State  restrict  the  bearing  of  arms, 
it  would  not  interfere  with  a  National  privilege. 

State  laws  forbidding  litigants  to  remove  cases  to  the 
Federal  courts  have  been  uniformly  held  to  abridge  the 


Its  Sources  and  Application  241 

privileges  and  immunities  of  citizens  of  the  United  States. 
In  19 14  the  Supreme  Court  said  that  a  State  cannot  penal- 
ize the  assertion  by  a  citizen  of  a  Federal  or  National  right. 

While  a  corporation  is  a  ''person"  within  this  Amend- 
ment, it  is  not  a  "citizen"  of  the  United  States  whose 
''privileges  or  immunities"  a  State  is  forbidden  to  abridge. 
A  State  may  therefore  impose  upon  a  corporation  created 
by  another  State  restrictive  conditions  respecting  its  doing 
business  (but  not  interstate  commerce)  within  the  first- 
named  State. 

Many  forms  of  regulation  by  States  have  been  held  by 
State  supreme  courts  and  by  the  Supreme  Court  of  the 
United  States  not  to  be  abridgments  under  this  clause  of 
the  rights  or  privileges  of  the  citizens  of  the  United  States, 
such  as  the  regulation  of  professions  and  occupations,  of 
the  manufacture  of  foods,  of  jury  trials  and  criminal  prose- 
cutions, and  so  on. 

nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law ;  ^^^ 

^^^  In  the  Fifth  Amendment  the  Nation  is  forbidden  (Note 
151)  to  deprive  any  one  "of  life,  liberty  or  property  without 
due  process  of  law" ;  and  here  the  like  command  is  issued 
by  the  people  to  the  State.  In  the  beginning  it  was  National 
power  that  was  feared.  Experience  later  taught  that  the 
power  of  the  State  also  may  be  tyrannical.  Due  process 
of  law  means,  said  the  Supreme  Court  in  a  late  case  (1908), 
that  "no  change  in  ancient  procedure  can  be  made  which 
disregards  those  fundamental  principles  .  .  .  which  .  .  . 
protect  the  citizen  in  his  private  right  and  guard  him  against 
the  arbitrary  action  of  the  government." 

Private  property  is  taken  for  public  use  in  opening  streets 
in  cities,  in  constructing  railways  and  canals,  in  erecting 
public  buildings,  in  laying  out  public  parks,  and  for  kin- 
dred purposes.  The  owner  cannot  be  deprived  of  his 
property  for  such  purposes   by  the  State  without   due 


242  Constitution  of  the  United  States 

process  of  law,  that  is,  without  a  full  hearing  and  ade- 
quate compensation. 

In  1884  it  was  held  by  the  Supreme  Court  of  the  United 
States  that  a  law  of  California  under  which  a  person  ac- 
cused of  crime  was  brought  to  trial,  convicted,  and  sen- 
tenced to  death  under  an  ^'information''  or  written  charge  by 
the  prosecuting  attorney  instead  of  under  an  indictment 
by  a  grand  jury  (Note  148)  did  not  violate  the  due-process 
clause.  The  grand  jury  guaranteed  by  the  Fifth  Amend- 
ment is  granted  against  National  power  and  not  against 
the  State. 

And  it  was  later  held  (1900)  by  the  Supreme  Court  that 
due  process  of  law  was  not  denied  to  the  accused  by  a  statute 
of  Utah  under  which  he  was  convicted  by  eight  of  the  twelve 
jurors,  as  the  '' impartial  jury"  (twelve  men  agreeing  unani- 
mously) guaranteed  by  the  Sixth  Amendment  (Note  153} 
must  be  provided  only  in  Federal  courts. 

The  ''liberty"  which  this  clause  safeguards  is  not  merely 
the  freedom  of  the  person  from  unjust  or  unlawful  imprison- 
,ment.  It  embraces  also  the  free  use  of  his  faculties  in  all 
lawful  ways.  "Liberty,"  said  a  great  judge,  "is  freedom 
from  all  restraints  but  such  as  are  justly  imposed  by  law ; 
beyond  that  line  Hes  the  domain  of  usurpation  and  tyranny." 

The  liberty  of  the  citizen  to  make  contracts  is  not  denied 
by  a  State  law  limiting  the  hours  of  the  day  of  labor  and 
fixing  a  fine  for  each  violation,  the  Supreme  Court  held 
(1908),  because  Hberty  is  not  absolute  when  the  welfare 
of  society  is  involved.  And  so  the  Supreme  Court  upheld 
(19 14)  as  constitutional  under  this  clause  the  law  of  a  State 
forbidding  under  penalty  that  women  be  employed  longer 
than  a  designated  day.  The  right  to  liberty  as  well  as  to 
property  was  held  (19 15)  infringed  by  a  State  law  penalizing 
an  employer  for  requiring,  as  a  condition  of  employment, 
that  an  employe  be  not  a  member  of  a  labor  union,  since 
an  employer  has  the  right  to  select  his  employes,  as  an  em- 
ploye has  to  choose  his  place  of  work. 


Its  Sources  and  Application  243 

The  Supreme  Court  held  (1905)  that  personal  liberty 
under  this  clause  was  not  infringed  by  a  law  for  compulsory 
vaccination  when  smallpox  was  prevalent  and  increasing. 

This  clause  was  held  (191 1)  contravened  by  a  State  law 
forbidding  the  employing  of  any  foreign-born  person  who 
was  not  naturalized  or  who  had  not  declared  his  intention 
to  become  a  citizen,  as  the  alien  has  the  like  right  to  Uberty 
and  property  and  the  ^' equal  protection  of  the  laws"  that 
a  native  enjoys. 

State  laws  prohibiting  the  employing  of  children  under 
specified  ages  and  in  employments  named  have  been  up- 
held as  denying  no  right  to  the  employer,  the  parent,  or 
the  child.  This  clause  was  not  violated  by  a  State  law  im- 
posing upon  manufacturers,  under  heavy  penalty,  the  abso- 
lute duty  of  making  expenditures  for  safeguarding  their 
machinery  to  prevent  injury  to  employes.  Laws  prohibit- 
ing the  payment  of  wages  in  scrip  or  orders  on  stores,  laws 
requiring  semi-monthly  payment  of  wages  in  some  employ- 
ments, laws  prohibiting  the  assignment  of  wages  not  yet 
earned  without  the  written  consent  of  the  wife  of  the  em- 
ploye, and  many  other  kinds  of  laws  for  the  help  of  the 
working  classes  have  been  upheld  by  the  Supreme  Courts 
of  the  States  and  the  Supreme  Court  of  the  United  States. 

The  Supreme  Court  of  Colorado  held  (1^21)  an  amend- 
ment to  the  Constitution  of  that  State  (1913)  a  denial  of 
due  process  of  law  because  it  prohibited  the  courts  of  the 
State  (except  the  Supreme-  Court)  from  passing  upon  cer- 
tain State  and  Federal  constitutional  questions  and  left 
it  for  the  people  to  determine  at  the  polls  whether  a  de- 
cision of  the  Supreme  Court  should  become  ejffective  at 
all.  As  the  National  Constitution  is  the  supreme  law  of 
the  land  (Note  133),  and  as  ''the  judges  in  every  State 
shall  be  bound  thereby,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding"  (Note 
134),  the  duty  thus  placed  upon  the  judges  of  State  courts 
to  uphold  the  Constitution  of  the  United  States  could  not 


244  Constitution  of  the  United  States 

be  stripped  of  them  by  any  act  of  either  the  legislature  or 
the  people. 

nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws.^^^ 

^^^By  Section  2  of  Article  IV  (Note  119)  ''the citizens 
of  each  State  shall  be  entitled  to  all  the  privileges  and  im- 
munities of  citizens  in  the  several  States."  That  is,  a  citi- 
zen of  one  State  doing  business  in  another  State  cannot  be 
denied  the  privileges  and  immunities  of  the  citizens  of  that 
State.  But  the  clause  in  this  Amendment  was  designed 
to  prevent  a  State  from  making  discriminations  between 
its  own  citizens.  While  it  was  written  primarily  for  the 
Hberated  Negro  (who  is  not  mentioned  in  the  Amendment), 
the  language  is  without  Hmitation,  extending  to  ''any  per- 
son ",  and  it  has  been  appKed  in  upwards  of  a  thousand  cases 
in  State  and  National  courts  to  every  conceivable  form  of 
inequality  arising  or  alleged  to  arise  out  of  the  laws  of  States. 

An  Act  of  Congress  fixing  punishment  for  three  or  more 
persons  conspiring  to  deprive  another  of  the  equal  protection 
of  the  laws  was  held  invalid  by  the  Supreme  Court  (1883) 
because  the  Fourteenth  Amendment  is  a  Hmitation  upon 
the  State  and  not  upon  persons.  The  word  "persons" 
includes  a  resident  aHen  or  a  corporation. 

But  this  langtiage  does  not  prevent  reasonable  classi- 
fication as  long  as  all  within  a  class  are  treated  alike.  The 
design  of  this  clause  was  "to  prevent  any  person  or  class 
of  persons  from  being  singled  out  as  a  special  subject  for 
discriminating  and  hostile  legislation."  This  does  not  pre- 
vent, for  example,  the  imposition  of  different  species  of  taxes. 
Thus  while  houses  and  lands  are  taxed  upon  their  actual 
value,  railroad  companies  may  be  required  to  pay  taxes 
upon  their  gross  income,  and  neither  owner  has  a  ground 
of  complaint  that  he  has  been  denied  the  equal  protection 
of  the  laws.  So  inheritance  taxes,  being  based  on  the  right 
to  inherit  property  at  all  (which  is  a  gift  from  the  State  and 


Its  Sources  and  Application  245 

not  a  natural  right),  may  be  graduated  according  to  the 
size  of  the  estate  one  receives  upon  the  death  of  another, 
and  the  one  inheriting  a  large  estate  cannot  complain  that 
the  scale  of  rates  applied  in  his  case  is  higher  than  that  used 
for  a  smaller  inheritance.  The  provision  of  a  State  home- 
stead law  excluding  Negroes  from  the  benefits  of  the  act 
denied  equal  protection  and  was  therefore  held  (1885)  un- 
constitutional. Because  a  State  law  requiring  voters  to  read 
excludes  a  greater  number  of  Negroes  than  others,  it  does 
not  therefore  deny  equal  protection.  The  Supreme  Court 
upheld  (1896)  a  State  law  requiring  railway  companies  to 
provide  separate  accommodations  for  white  and  colored 
passengers ;  with  equal  accommodations  equal  protection 
was  preserved.  And  so  where  schools  for  Chinese  offered 
the  advantages  of  other  schools  it  was  held  (1902)  that  equal 
protection  was  not  denied.  A  law  putting  in  effect  the 
Australian  system  of  balloting  was  held  (1874)  not  to  deny 
equal  protection  to  the  bhnd  or  to  others  physically  or  edu- 
cationally unable  to  vote.  A  city  ordinance  requiring  that 
the  hair  of  prisoners  be  cUpped  was  held  (1879)  invalid  as 
directed  against  Chinese  and  imposing  a  degrading  and 
cruel  punishment.  A  priyilege"  tax  of  $25  on  business  men 
resident  in  the  State  and  a  tax  of  $100  on  non-residents 
was  held  (191 9)  to  deny  equal  protection. 

The  Supreme  Court  held  (1920)  it' within  the  police  power 
of  a  State  to  enact  that  natural  gas  coming  from  wells 
within  ten  miles  of  an  incorporated  town  or  an  industrial 
plant  should  not  be  burned  for  its  products  (such  as  carbon 
black)  unless  the  remainder  of  the  heat  contained  in  the  gas 
should  be  fully  and  actually  applied  for  other  manufactur- 
ing purposes  or  for  domestic  uses.  A  company  which  was 
burning  gas  in  making  carbon  black  for  printer's  ink  claimed 
that  the  legislation  discriminated  respecting  owners  of  wells 
and  producers  of  carbon  black  within  ten  miles  of  a  town 
and  those  beyond  that  radius,  and  that  it  was  therefore  a 
denial  of  that  "equal  protection"  which  a  State  is  forbidden 


246  Constitution  of  the  United  States 

to  withhold.  The  court  said  that  the  classification  of  users, 
appearing  to  have  been  made  for  the  conservation  of  natu- 
ral resources  and  not  arbitrarily,  was  vahd. 

A  city  ordinance  prohibiting  Negroes  from  residing  in 
blocks  in  which  the  majority  of  the  houses  were  occupied 
by  white  persons,  and  in  Kke  manner  prohibiting  white  per- 
sons from  residing  in  blocks  largely  occupied  by  Negroes, 
was  by  the  Supreme  Court  held  (191 7)  unconstitutional, 
where  a  Negro  purchased  property  and  could  not  occupy 
it  under  the  ordinance. 

But  the  Supreme  Court  of  California  held  (1920)  that 
a  condition  subsequent  in  a  deed  to  land,  that  the  premises 
would  revert  to  the  grantor  or  seller  if  occupation  of  them 
should  ever  be  permitted  to  any  but  a  Caucasian,  did  not 
conflict  with  the  Fourteenth  Amendment,  as  that  prohibits 
action,  not  by  an  individual,  but  by  a  State. 

Equal  protection  was  held  (1892)  denied  by  a  State  law 
forbidding  mining  companies  to  keep  general  stores  for  the 
patronage  of  the  employes,  because  no  such  limitation  was 
placed  upon  other  employers. 

The  foregoing  examples  are  sufficient  to  show  the  meaning 
of  the  equaHty-of-treatment  clause  and  to  illustrate  that 
the  Constitution  remains  a  much-used  and  very  serviceable 
instrument. 

Section  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respec- 
tive numbers,  counting  the  whole  number  of  persons 
in  each  State,  excluding  Indians  not  taxed.^^^ 

^^^  Up  to  this  time  members  of  the  House  of  Representa- 
tives were  allowed  to  each  State  in  proportion  to  the  white 
population  and  three  fifths  of  the  slaves  (Note  11),  but 
this  provision  made  each  Negro  count  one. 

But  when  the  right  to  vote  at  any  election  for  the 
choice  of  Electors  for  President  and  Vice-President 


Its  Sources  and  Application  247 

of  the  United  States,  Representatives  in  Congress, 
the  Executive  and  Judicial  officers  of  a  State,  or  the 
members  of  the  Legislature  thereof,  is  denied  to  any 
of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States, 
or  in  any  way  abridged,  except  for  participation  in 
rebellion,  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in 
such  State.176 

^^^  This  enables  the  Nation  to  inflict  punishment  upon 
the  S  t&te  for  preventing  citizens  f  roni  voting  —  from  voting  for 
National  officers  not  only,  but  also  some  officers  of  the  State, 
as  the  executive  who  calls  elections  to  fill  vacancies  in  Con- 
gress, the  judges  who  may  pass  upon  questions'  of  election, 
and  the  members  of  the  legislature  who  in  1866  (but  not 
since  the  Seventeenth  Amendment,  1 9 13)' elected  the  Sena- 
tors of  the  United  States.  A  State  law  or  institution  re- 
quiring of  voters  ability  to  read  and  write  does  not  con- 
travene this  provision.  Congress  never  has  exerted  its 
power  under  this  Amendment  to  reduce  the  mmaber  of  a 
State's  representatives  in  the  National  House. 

Section  3.  No  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  elector  of  President  and 
Vice-President,  or  hold  any  office,  civil  or  miUtary, 
under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  Con- 
gress, or  as  an  officer  of  the  United  States,  or  as  a 
member  of  any  State  legislature,  or  as  an  executive 
or  judicial  officer  of  any  State,  to  support  the  Consti- 
tution of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given 


248  Constitution  of  the  United  States 

aid  or  comfort  to  the  enemies  thereof.  But  Congress 
may  by  a  vote  of  two-thirds  of  each  House,  remove 
such  disability.  ^^^ 

^^^  It  was  claimed  by  Jefferson  Davis,  who  had  been  Pres- 
ident of  the  Confederate  States  of  America  (1861-1865), 
and  who  had  in  1845  been  a  member  of  the  National  Con- 
gress, that  the  punishment  specified  in  this  Section,  which 
prevented  him  from  ever  holding  any  office.  National  or 
State,  superseded  in  his  case  the  punishment  for  treason 
which  Congress  had  fixed  (Note  115)  and  that  therefore 
the  indictment  charging  him  with  treason  must  be  quashed. 
The  point  was  argued,  but  before  it  was  decided  by  the  court 
a  proclamation  of  general  amnesty  was  issued  by  the  Pres- 
ident, and  later  the  indictment  was  dismissed.  On  Christ- 
mas day,  1868,  President  Johnson  issued  a  general  proc- 
lamation of  amnesty,  granting  *' unconditionally  and  with- 
out reservation"  to  all  who  had  been  engaged  in  the 
Southern  cause,  "a  full  pardon." 

Not  until  Tune  6,  1898,  did  Congress  remove  the  last 
vestige  of  thW  disability.  On  March  31,  1896,  Congress 
repealed  an  earlier  act  forbidding  that  any  one  who  had 
left  the  army  or  navy  of  the  United  States  to  aid  the  Con- 
federacy should  ever  hold  place  in  the  army  or  navy  again. 
But  the  Act  of  Oblivion  came  two  years  later,  when  the  dis- 
ability imposed  by  the  Fourteenth  Amendment  was  removed 
as  to  all.     War  with  Spain  had  begun  in  April  of  that  year. 

Among  the  most  eager  volunteers  were  ''elderly  South- 
erners" who  had  served  as  soldiers  or  officers  in  the  Con- 
federate army.  General  Joseph  Wheeler,  a  noted  cavalry 
leader  of  the  South,  and  a  son  of  Robert  E.  Lee  were  among 
those  to  receive  military  commissions  from  President  Mc- 
Kinley,  the  Commander  in  Chief,  who  had  served  in  the 
Union  army  in  the  Civil  War. 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  in- 


Its  Sources  and  Application  249 

curred  for  payment  of  pensions  and  bounties  for  ser- 
vices in  suppressing  insurrection  or  rebellion,  shall  not 
be  questioned.  But  neither  the  United  States  nor 
any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipa- 
tion of  any  slave;  but  all  such  debts,  obligations  and 
claims  shall  be  held  illegal  and  void.^^^ 

^^^  The  debt  incurred  for  the  Union  during  the  Civil  War, 
including  bounties  and  pensions,  was  by  the  adoption  of 
this  Amendment  acknowledged  and  proportionately  as- 
sumed by  the  southern  States ;  and  at  the  same  time  they 
were  rendered  incapable  of  paying  any  part  of  the  debt  (over 
$1,400,000,000)  which  they  owed  to  their  own  citizens  and 
to  England,  France,  and  other  countries.  The  southern 
States  lost  also  the  value  of  the  emancipated  slaves. 

This  section  deals  only  with  what  the  Nation  and  the 
State  shall  do.  An  individual  was  held  boimd  by  the  Su- 
preme Court  to  pay  after  emancipation  the||irice  which  he 
had  agreed  before  the  Civil  War  to  give  for  a  slave,  when 
such  a  contract  was  legal,  for  it  was  out  of  the  power  of  a 
State  to  impair  (Note  71),  as  it  undertook  to  do,  the  obli- 
gation of  such  a  contract. 

Section  5.  The  Congress  shall  have  power  to  en- 
force, by  appropriate  legislation,  the  provisions  of  this 
article.179 

^^^  Appropriate  legislation  by  Congress  means  such  as  is 
*' adapted  to  the  mischief  and  wrong  which  the  Amendment 
was  intended  to  provide  against"  —  that  is,  to  prevent 
oppressive  action,  not  by  individuals,  but  by  State  govern- 
ments. Therefore  the  Civil  Rights  Act  of  March  i,  1875, 
which  declared  that  all  persons  (meaning  the  emancipated 
Negroes)  should  be  ''entitled  to  the  full^nd  equal  enjoyment 
of  the   accommodations,  advantages,  faciHties  and  privi- 


250  Constitution  of  the  United  States 

leges  of  inns,  public  conveyances  on  land  or  water,  theatres, 
and  other  places  of  public  amusement",  was  held  (1883) 
by  the  Supreme  Court  to  be  unconstitutional  as  to  the  sec- 
tions v/hich  provided  punishment  for  persons  who  should 
interfere  with  the  rights  mentioned,  for  the  prohibition  of 
the  Amendment  is  directed  only  against  action  by  States. 
''Until  some  State  law  has  been  passed,"  said  the  Supreme 
Court,  ''or  some  State  action  through  its  officers  or  agents 
has  been  taken  adverse  to  the  rights  of  the  citizens  sought 
to  be  protected  by  the  Fourteenth  Amendment,  no  legis- 
lation of  the  United  States  under  said  Amendment,  nor  any 
proceeding  under  such  legislation,  can  be  called  into  activ- 
ity." 

ARTICLE  XV. 

Proposed  by  Congress  February  27,  1869;  proclaimed  adopted 
March  30,  1870. 

Section  i.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. ^^^ 

^^°  This  is  the  last  of  the  three  Amendments  arising  from 
the  Civil  War.  By  these  ''the  chains  of  the  Constitution", 
as  Jefferson  called  its  limitations,  were  placed  upon  the 
States,  as  by  the  fijrst  ten  Amendments  they  had  been  put 
upon  the  Nation. 

''The  Fifteenth  Amendment,"  said  the  Supreme  Court 
(1875),  "does  not  confer  the  right  of  suffrage  upon  any  one. 
It  prevents  the  States,  or  the  United  States,  however,-^rom 
giving  preference  in  this  particular  to  one  citizea  of  the 
United  States  over  another  on  account  of  i^ce,  color,  or 
previous  condition  of  servitude.  Before  its  adoption  this 
could  be  done.  It  was  as  much  within  the  power  of  a  State 
to  exclude  citizens  of  the  United  States  from  voting  on  ac- 


Its  Sources  and  Application  251 

count  of  race,  etc.,  as  it  was  on  account  of  age,  property, 
or  education.     Now  it  is  not." 

A  State  which  voted  against  the  adoption  of  this  Amend- 
ment left  the  word  ''white"  in  its  constitution  as  descrip- 
tive of  those  entitled  to  vote.  The  Supreme  Court  said 
(1880)  that  the  Amendment  struck  the  word  from  the  con- 
stitution of  the  State. 

The  ''Grandfather's  Clause"  cases,  as  they  were  called, 
were  decided  by  the  Supreme  Court  in  191 5.  In  1908  a 
law  was  passed  in  Maryland  giving  the  right  to  vote  to  all 
persons  who,  prior  to  January  i,  1868,  were  entitled  to  vote 
in  that  State  "and  to  the  lawful  male  descendants  of  any 
person"  who  was  at  that  time  entitled  to  vote.  As  the 
Negro  was  not  at  that  time  entitled  to  vote  in  the  State, 
and  as  the  Fifteenth  Amendment  forbidding  restrictions 
upon  him  had  not  been  adopted,  the  State  law  operated 
to  exclude  all  his  descendants  from  the  polls.  In  19 10  a 
constitutional  amendment  ip  OkraHoyia  presented  a  literacy 
test  (which  may  be  legal  if  fair)  and  at  the  same  time  Km- 
ited  the  right  to  vote  to  a  person  who  was  a  voter  on  January 
I,  1866,  or  a  lineal  descendant  of  such  a  person.  In  both 
of  these  instances  the  "previous  condition  of  servitude" 
actually  determined  that  a  class  could  not  vote.  The  Su- 
preme Court  held  that  the  State'  law  and  the  State  consti- 
tutional provision  were  both  violative  of  the  Fifteenth 
Amendment,  because  they  were  based  on  standards  which 
became  illegal  by  the  self -operating  force  of  the  Amendment. 

Section  2.  The  Congress  shall  have  power  to  en- 
force this  article  by  appropriate  legislation. 

ARTICLE   XVI. 

Proposed  by  Congress  July  31,  1909 ;  proclaimed  adopted  Febru- 
ary 25,  1913.  • 

The  Congress  shall  have  power  to  lay  and  collect 
taxes  on  incomes,^^^ 


252  Constitution  of  the  United  States 

^^^  The  purpose  of  the  Amendment,  said  the  Supreme 
Court  (19 1 6),  was,  not  to  extend  the  taxing  power  of  the 
government,  but  only  to  exclude  the  sourfe  from  which  a 
taxed  income  is  derived  from  being  used  as  the  criterion 
in  determining  whether  it  should  be  apportioned  by  Con- 
gress among  the  States  on  the  basis  of  population  in  obedi- 
ence to  the  clause  explained  by  Note  10. 

from  whatever  source  derived,^ ^^  without  apportion- 
ment among  the  several  States,  and  without  regard 
to  any  census  or  enumeration. 

^^2  But  this  does  not  authorize  the  taxing  of  the  salaries 
of  the  justices  of  the  Supreme  Court  of  the  United  States  and 
of  the  judges  of  the  inferior  Federal  courts,  for  it  is  forbid- 
den (Note  98)  that  they  be  diminished.  Therefore  the 
Supreme  Court  held  (1920)  unconstitutional  that  clause  of 
the  Income  Tax  Act  of  191 9  which  named  such  salaries  as 
subject  to  taxation.  The  command  that  the  salaries  of 
judges  be  not  reduced  was  given,  not  in  any  sense  to  favor 
the  individuals  who  receive  the  salaries,  but  solely  to  pro- 
tect the  judicial  officers  of  the  Nation  from  being  intimi- 
dated by  the  Legislative  and  Executive  departments  out 
of  a  state  of  independence  into  a  condition  of  fear.  If  the 
justices  of  the  Supreme  Court  and  the  judges  of  the  Federal 
courts  should  have  incomes  from  lands  or  from  any  other 
property,  they  must  pay  a  tax  upon  those  incomes  as  all 
other  individuals  do  upon  theirs.  But  the  salaries  paid 
to  them  by  the  Nation  as  its  judicial  officers  are  not  to  be 
diminished. 

ARTICLE  XVn. 

Proposed  by  Congress  May  15,  191 2;  proclaimed  adopted  May 
31,  1913- 

The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  elected  by  the  peo- 


Its  Sources  and  Application  253 

pie  thereof,  for  six  years ;  ^^^  and  each  Senator  shall 
have  one  vote. 

^^^This  Amendment  changes  the  clause  explained  by 
Note  19.  Senators  are  now  elected  by  the  people  (asmembers 
of  the  House  of  Representatives  always  have  been)  instead 
of  by  the  legislatures  of  the  States.  More  than  thirty  States 
had  declared  for  the  direct  election  of  senators.  During 
the  preceding  twenty  years  so  many  protracted  election 
contests  had  been  conducted  in  State  legislatures  that  legis- 
lation for  the  benefit  of  the  States  could  not  be  carried  on. 
In  some  instances  no  senator  was  elected  and  thus  the  State 
was  deprived  of  its  full  vote  in  the  Senate.  The  first  reso- 
lution to  amend  the  Constitution  in  this  respect  was  intro- 
duced in  Congress  in  1826.  Many  others  were  introduced 
from  time  to  time. 

In  1869  President  Johnson  suggested  to  Congress  an 
amendment  for  the  direct  election  of  senators. 

Before  this  Amendment  public  opinion  often  affected 
or  controlled  the  choice  of  a  senator.  Thus  the  famous 
debates  throughout  Illinois  between  Lincoln  and  Douglas 
(1858)  were  in  quest  of  a  senatorship. 

The  electors  in  each  State  shaU  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous 
branch  of  the  State  legislatures. 

When  vacancies  happen  in  the  representation  of 
any  State  in  the  Senate,  the  executive  authority  of 
such  State  shall  issue  writs  of  election  to  fill  such  va- 
cancies; Provided,  that  the  legislature  of  any  State 
may  empower  the  executive  thereof  to  make  tempo- 
rary appointment  until  the  people  fill  the  vacancies 
by  election  as  the  legislature  may  direct. 

This  Amendment  shall' not  be  so  construed  as  to 
affect  the  election  or  term  of  any  Senator  chosen  be- 
fore it  becomes  valid  as  part  of  the  Constitution. 


254  Constitution  of  the  United  States 

ARTICLE  XVIII. 

Proposed  by  Congress  December  19,  191 7;  proclaimed  adopted 
January  29,  1919. 

Section  i.  After  one  year  from  the  ratification  of 
this  article  the  manufacture,  sale,  or  transportation 
of  intoxicating  liquors  within,  the  importation  thereof 
into,  or  the  exportation  thereof  from  the  United 
States  and  all  territory  subject  to  the  jurisdiction 
thereof  for  beverage  purposes  is  hereby  prohibited,^ ^^ 

^^On  June  7,  1920,  the  Supreme  Court  of  the  United 
States,  disposing  in  one  opinion  of  seven  cases  arising  in 
New  Jersey,  Rhode  Island,  Massachusetts,  Kentucky,  Wis- 
consin, and  Missouri,  held  that  by  Article  V  of  the  Consti- 
tution (Note  129)  the  power  to  make  this  Amendment  was 
reserved  by  the  people.  As  the  source  of  all  power  is  in 
the  people,  it  is  difficult  to  conceive  of  an  invahd  amend- 
ment if  it  has  been  carried  through  by  regular  proceedings. 
While  originally  the  people  may  not  have  believed  a  sub- 
ject one  for  consideration  in  the  Constitution,  they  may 
change  their  opinion,  and  their  will  is  the  supreme  law. 
The  Supreme  Court  said  that  the  first  section  (the  one 
declaring  the  prohibition)  ^'is  operative  throughout  the 
entire  territorial  hmits  of  the  United  States,  binds  all 
legislative  bodies,  courts,  public  officers  and  individuals 
within  those  limits,*  and  of  its  own  force  invahdates 
every  legislative  act  —  whether  by  Congress,  by  a  State 
legislature,  or  by  a  territorial  assembly  —  which  authorizes 
or  sanctions  what  the  section  prohibits." 

That  gives  a  remarkably  striking  illustration  of  the  prac- 
tical operation  of  that  marvelous  invention  of  American 
statesmanship,  —  the  Constitution  as  the  supreme  law  of 
the  land,  before  which  all  confficting  constitutions  and  laws 
are  nullities,  as  ineffectual  as  if  they  never  existed.  In  like 
manner  the  Fourteenth  Amendment,  as  has  been  seen,  struck 


Its  Sources  and  Application  255 

racial  limitations  out  of  northern  as  well  as  southern  State 
constitutions,  wiped  away  volumes  of  enactments  by  the 
Congress  and  by  the  legislatures  of  the  States,  and  rendered 
useless  except  as  history  a  great  number  of  judicial  decisions 
upon  the  status  of  the  slave. 

It  was  contended  that  '' two-thirds  of  both  Houses''  in 
Article  V  means  two  thirds  of  the  membership  of  each  House, 
and  that  as  such  a  vote  did  not  propose  this  Amendment, 
it  was  invalid.  But  the  Supreme  Court  repeated  what  it 
had  held  in  an  earlier  case,  that  two  thirds  of  the  members 
present,  assuming  the  presence  of  a  quonmi  (majority), 
may  propose  an  Amendment. 

It  was  held  further  that  under  Article  V  a  State  cannot 
ratify  or  reject  an  Amendment  by  a  referendum;  action 
must  be  taken  by  its  legislature  or  by  a  convention. 

Section  2.  The  Congress  and  the  several  States 
shall  have  concurrent  power  to  enforce  this  article  by 
appropriate  legislation.^ ^^ 

^^^  The  meaning  of  this  language  provoked  a  great  deal 
of  discussion  while  the  Amendment  was  pending.  Where 
State  and  Federal  courts  have  "concurrent  jurisdiction" 
of  a  subject,  for  example,  the  one  whose  jurisdiction  is  first 
invoked  retains  the  case  to  the  exclusion  of  the  other.  Did 
Congress  mean  anything  like  that  when  it  wrote  "concur- 
rent power"  in  the  Amendment?  Would  the  inadequate 
legislation  of  an  unsympathetic  Stat*e  prevent  Congress 
from  legislating?  Would  early  legislation  by  Congress  ex- 
clude a  State  from  the  field?  The  Supreme  Court  said  that 
the  words  do  not  mean  joint  power,  or  require  that  legis- 
lation by  Congress  must  be  sanctioned  by  a  State,  or  that 
the  power  is  divided  along  Hues  which  distinguish  State  com- 
merce from  interstate. 

It  was  evidently  the  purf)ose  to  make  use  of  the  ex- 
perience of  many  of  the  States  in  enforcing  prohibitory 
laws  and  to  put  with  that  experience  the  power  of  the 


^56  Constitution  of  the  United  States 

Nation,  the  National  power  to  be  employed  more  vig- 
orously where  a  State  might  be  indifferent. 

Section  3.  This  article  shall  be  inoperative  unless 
it  shall  have  been  ratified  as  an  amendment  to  the 
Constitution  by  the  Legislatures  of  the  several  States, 
as  provided  in  the  Constitution,  within  seven  years  ^^^ 
from  the  date  of  the  submission  hereof  to  the  States 
by  the  Congress. 

i36]sq-Q  other  Amendment  contains  such  a  limitation  as 
to  time.  This  was  introduced  upon  a  showing  that  many 
old  proposals  are  still  pending,  one  against  the  extension 
of  slavery.  In  1873,  in  the  days  of  the  "salary  grab", 
the  Senate  of  Ohio  took  up  and  approved  by  resolution, 
after  it  had  been  pending  for  eighty-four  years  with- 
out ratification  by  three  fourths  of  the  States,  what  had 
been  originally  proposed  as  the  Second  Amendment,  pro- 
hibiting a  change  of  the  pay  of  Congressmen  imtil  an  elec- 
tion had  intervened. 

ARTICLE  XIX. 

Proposed  by  Congress  June  5,  1919;  proclaimed  August  26,  1920. 

Section  i.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  sex.^^^ 

^^^  The  resolution  of  proposal  was  first  introduced  in  Con- 
gress by  Senator  A.  A.  Sargent  of  CaUfornia  at  the  request 
of  Miss  Susan  B.  Anthony,  on  June  10,  1878,  nearly  forty- 
one  years  before  it  was  passed  by  both  Houses. 

Eleven  years  before  that,  when  the  Reform  Bill  of  1867 
was  pending  in  the  English  Parliament,  which  made  man- 
hood suffrage  almost  general  by  extending  it  beyond  the 
upper  and  middle  classes  to  which  it  had  been  limited  by 
the  Reform  Bill  of  1832,  John  Stuart  Mill  proposed  an 
amendment  that  the  Bill  include  suffrage  by  women.    The 


Its  Sources  and  Application  ^57 

proposal  was  first  taken  as  *' something  droll"  (McCarthy's 
*' History  of  Our  Own  Times"),  but  it  finally  produced  *'a 
very  interesting,  grave,  and  able  discussion  in  the  House  of 
Commons."  The  amendment  received  73  votes ;  there  were 
196  ag^nst  it.  In  1884  the  third  Reform  Bill  extended 
suffrage  to  all  males  except  paupers,  lunatics,  and  criminals. 
The  franchise  was  given  to  women  in  19 19,  and  the  first 
woman  to  take  a  seat  in  the  House  of  Commons,  elected 
in  November  and  admitted  in  December  of  that  year.  Lady 
Nancy  Astor  of  Plymouth,  was  born  in  Virginia  of  the  Lang- 
horne  family.  The  first  woman  entered  the  Australian 
Parliament  in  192 1,  and  in  the  same  year  Miss  Agnes  Mc- 
Phail  was  elected  to  the  Canadian  Parliament.  In  March, 
1922,  the  committee  on  privileges  of  the  English  House  of 
Lords  granted  the  petition  of  Viscountess  Rhonddaas  heiress 
to  the  seat  which  her  father  had  occupied  in  that  body. 

In  many  States  in  the  Union  women  enjoyed  suffrage 
in  State  affairs  before  this  Amendment.  Wyoming  en- 
franchised women  in  1869,  Colorado  in  1893,  Utah  and  Idaho 
in  1896,  and  Washington  in  1910.  In  some  other  States 
they  enjoyed  suffrage  with  respect  to  minor  offices.  As 
the  qualifications  stated  in  the  Constitution  entitHng  one 
to  a  seat  in  the  House  of  Representatives  (Notes  8  and  9) 
are  applicable  to  a  woman,  a  female  member  of  the  House 
was  elected  by  Montana  in  191 6,  nearly  four  years  before 
this  Amendment  was  proclaimed.  The  first  woman  thus 
to  be  distinguished  by  a  seat  in  the  Congress  of  the  United 
States  was  Miss  Jeanne tte  Rankin. 

This  Amendment,  being  the  Supreme  law  of  the  land, 
rendered  ineffectual  forever  the  provisions  in  many  Acts 
of  Congress,  in  many  State  constitutions  and  in  the  enact- 
ments oftnany  State  legislatures  containing  the  word  "male" 
with  respect  to  suffrage. 

The  following  table  show^  the  order  and  manner  of  rati- 
fication by  the  first  thirty-sk  (the  necessary  three  fourths) 
States,  the  letter  R.  standing  for  Republican  and  the  letter 


258 


Constitution  of  the  United  States 


D.  for  Democratic.     In  the  last  two  columns  the  vote  in 

the  houses  of  each  State  legislature  is  given. 

State 

Gov. 

Legis. 

Date 

Senate 

House 

I.   Wisconsin 

R. 

R. 

June  10 

24-1 

'54-2 

2.   Michigan  (i) 

R. 

R. 

June  10 

Unanimous 

Unanimous 

3.   KansasO) 

R. 

R. 

June  16 

Unanimous 

Unanimous 

4.   Ohio  (1) 

D. 

R. 

June  16 

27-3 

73-6 

5.   New  York  0) 

D. 

R. 

June  16 

Unanimous 

Unanimous 

6.   Illinois 

R. 

R. 

June  17 

Unanimous 

133-4 

7.   Pennsylvania 

R. 

R. 

June  24 

32-6 

153-44 

8.  Massachusetts 

R. 

R. 

June  25 

43-5 

184-47 

9.   Texas  (0 

D. 

D. 

June  29 

12-2 

96-21 

lo.  Iowa  C) 

R. 

R. 

July     2 

Unanimous 

95-5 

II.  Missouri  Q) 

D. 

Div'd 

July    3 

28-3 

125-4 

12.   Arkansas  Q) 

D. 

D. 

July  20 

29-2 

76-17 

13.   Montana   Q-) 

D. 

R. 

July  30 

38-1 

Unanimous 

14.  Nebraska  (i) 

R. 

R. 

Aug.    2 

Unanimous 

Unanimous 

15.   Minnesota  C) 

R. 

R. 

Sept.  8 

60-5 

120-6 

16.  New  Hamp- 

shire (1) 

R. 

R. 

Sept.  10 

14-10 

212-143 

17.   Utah  0) 

D. 

D. 

Sept.  30 

Unanimous 

Unanimous 

18.   California  0) 

R. 

R. 

Nov.   I 

Unanimous 

73-2 

19.   Maine  0) 

R. 

R. 

Nov.   5 

24-S 

72-68 

20.   No.  Dakota  0) 

R. 

R. 

Dec.    I 

38-4 

103-6 

21.   So.  Dakota  0) 

R. 

R. 

Dec.    4 

Unanimous 

Unanimous 

22.   Colorado  (0 

R. 

R. 

Dec.  12 

Unanimous 

Unanimous 

23.   Rhode  Island 

R. 

R. 

Jan.     6 

37-1 

89-3 

24.   Kentucky 

R. 

Div'd 

Jan.     6 

30-8 

72-25 

25.   Oregon  0) 

R. 

R. 

Jan.  12 

Unanimous 

Unanimous 

26.  Indiana  (^) 

R. 

R. 

Jan.  16 

43-3 

Unanimous 

27.   Wyoming  0) 

R. 

R. 

Jan.  27 

Unanimous 

Unanimous 

28.   Nevada  (i) 

D. 

Div'd 

Feb.    7 

Unanimous 

Unanimous 

29.   New  Jersey 

D. 

R. 

Feb.  10 

18-2 

34-24 

30.   Idaho  (1) 

R. 

R. 

Feb.  II 

29-6 

Unanimous 

31.  Arizona  (^) 

R. 

D. 

Feb.  12 

Unanimous 

Unanimous 

32.   New  Mexico  0) 

R. 

R. 

Feb.  19 

1 7-5 

•36-10 

S3.   Oklahoma  (i) 

D. 

D. 

Feb.  27 

24-15 

84-12 

34.   W.  Virginia  (i) 

D. 

D. 

Mar.  10 

15-14 

47-40 

35.  Washington  (1) 

R. 

R. 

Mar.  22 

Unanimous 

Unanimous 

36.   Tennessee  (i) 

D. 

D. 

Aug.  18 

25-4 

50-46 

^  Ratified  at  special  session. 


Its  Sources  and  Application 


259 


Section  2.   Congress  shall  have  power  to  enforce 
this  Article  by  appropriate  legislation. 


*  * 


The  time  which  elapsed  between  the  proposal  of  each 
Amendment  by  Congress  and  the  proclamation  by  the  Sec- 
retary of  State  of  ratification  by  three  fourths  of  the  States 
affords  an  interesting  study : 


Years 

Months 

Days 

„ 

First  ten  Amendments  (Bill  of  Rights) 

_ 

8 

20 

Eleventh  (against  suing  State) 

3 

4 

3 

Twelfth  (changing  election  President) 

- 

9 

13 

Thirteenth  (abolishing  slavery) 

- 

10 

17 

Fourteenth  (giving  Negro  citizenship) 

2 

I 

12 

Fifteenth  (forbidding  denial  citizenship) 

I 

I 

3 

Sixteenth  (income  tax) 

3 

6 

24 

Seventeenth  (election  of  senators) 

I 

- 

16 

Eighteenth  (prohibition) 

I 

I 

10 

Nineteenth  (woman  suffrage) 

I 

2 

25 

When  Chisholm  sued  the  State  of  Georgia  and  the  Su- 
preme Court  upheld  (1793)  the  action  as  authorized  by  the 
Constitution  (Note  104)  the  excitement  was  intense  and 
the  Eleventh  Amendment  was  proposed  by  Congress  two 
days  afterward.  One  State  enacted  a  law  fixing  the  penalty 
of  death  for  any  one  who  should  bring  a  suit  against  it. 
Another  convoked  a  special  session  of  its  legislature  which 
declared  the  decision  to  be  dangerous.  Yet  the  temper 
cooled,  and  the  Amendment  was  before  the  public  for  three 
years  and  a  third  before  it  secured  the  necessary  ratifications. 

The  struggle  over  the  Fourteenth  Amendment  was,  of 
course,  very  bitter  as  well  as  long.  Southern  States  were 
slow  in  ratifying  it,  notwithstanding  that  their  representa- 
tion again  in  Congress  was  conditioned  upon  acquiescence ; 
and  as  some  of  the  northern  States  were  against  the  Amend- 


260  Constitution  of  the  United  States 

ment,  the  help  of  southern  States  for  a  time  seemed  neces- 
sary. 

When  the  Supreme  Court  held  (1895)  that  a  tax  on  the 
income  from  land  is  equivalent  to  a  tax  on  the  land  itself, 
and  that  it  must  therefore  be  apportioned  among  the  States 
(Note  10)  as  taxes  on  lands  always  had  been  under  the  con- 
stitutional requirement,  there  was  much  dissatisfaction. 
Yet  the  Sixteenth  Amendment,  removing  the  necessity  for 
apportionment,  was  not  proposed  by  Congress  for  four- 
teen years,  and  it  remained  before  the  States  for  adoption 
over  four  years  more,  the  longest  time  that  an  Amendment 
has  been  under  consideration. 

The  first  of  the  last  four  Amendments  was  proposed  (1909) 
at  a  time  when  in  some  circles  it  was  fashionable  to  find 
fault  with  the  Constitution  as  an  outgrown  shell,  and  in 
particular  to  criticize  it  as  not*  so  readily  amendable  as  the 
needs  of  a  progressive  age  required  that  it  be.  Yet  the 
Sixteenth  Amendment  was  adopted.  And  the  three 
Amendments  following  that  —  the  first  of  which  was 
adopted  in  the  same  year,  the  second  of  which  was  proposed 
four  years  thereafter,  and  the  last  of  which  was  proposed 
less  than  six  months  after  the  preceding  one  had  been  pro- 
claimed adopted  —  each  of  which  affects  our  National  and 
poHtical  Hfe  profoundly,  were  each  before  the  people  only 
a  little  over  a  year.  Thus  time  and  circumstance,  which  dis- 
pose of  so  many  questions,  made  sweeping  answer  to  the  crit- 
icism that  our  Constitution  is  not  sufficiently  flexible.  In- 
deed, and  singularly  enough,  durmg  the  pendency  of  the  Pro- 
hibitory Amendment  objection  to  the  Constitution  was  that 
it  is  too  readily  amended,  and  during  the  progress  of  the  great 
lawsuits  which  grew  out  o£  it  the  statement  was  often  made 
that  ratification  was  hurried  through  State  legislatures  be- 
fore the  people  had  sufficient  time  to  weigh  the  matter  care- 
fully. It  was  said  that  Congress  should  have  called  con- 
ventions in  the  States  (Note  129)  to  consider  ratifying  the 
proposed  Amendment  instead  of  submitting  it  to  the  State 
legislatures,  and  it  was  also  contended  that  the  legislatures 


Its  Sources  and  Application  ^61 

should  have  first  ascertained  the  wishes  of  the  people  in- 
stead of  ratifying  hastily. 

More  than  two  thousand  amendments  to  the  Constitution 
have  been  proposed  in  Congress.  Forty-eight  were  pro- 
posed in  one  Congress,  fifty-four  in  another,  and  seventy- 
three  in  another.  Nine  proposed  amendments  have  passed 
the  Senate  and  failed  in  the  House  of  Representatives,  and 
the  Senate  has  rejected  as  many  that  passed  the  House. 
Those  facts  indicate  that  the  sober  sense  of  the  people  is 
against  frequent  alterations  of  the  fundamental  law  except 
in  case  of  clear  necessity.  To  the  English  historian  Lecky 
the  inability  to  amend  our  Constitution  to  suit  every  notion 
of  the  day  seemed  the  greatest  blessing  of  the  American. 
Bryce  also  has  expressed  the  like  opinion.  ''  Moreover, 
the  process  prescribed  for  amendment,"  he  says,  **  inter- 
poses various  delays  and  formahties  before  a  change  can 
be  carried  through,  pending  which  the  people  can  reconsider 
the  issues  involved  and  recede,  if  they  think  fit,  from  proj- 
ects that  may  have  at  first  attracted  them.  Both  in 
Switzerland  and  in  the  States  of  the  American  Union  it  has 
repeatedly  happened  that  constitutional  amendments  pre- 
pared and  approved  by  the  legislatures  have  been  rejected 
by  the  people,  not  merely  because  the  mass  of  the  people 
are  often  more  conservative  than  their  representatives,  or 
less  amenable  to  the  pressure  of  particular  *  interests '  or 
sections  of  opinion,  but  because  fuller  discussions  revealed 
objections  whose  weight  had  not  been  appreciated  when 
the  proposal  first  appeared.  In  these  respects  the  rigid 
Constitution  has  real  elements  of  stabiHty." 

The  history  of  proposed  amendments  proves  clearly  that 
what  Congress  and  the  people  are  eager  for  to-day  may  be 
deemed  undesirable  to  them  to-morrow.  But  amendments 
the  need  of  which  the  people  had  well  considered  before 
they  were  proposed,  and  of  this  usefulness  of  which  they  were 
fully  convinced,  have  been  very  easily  adopted.  Of  the 
many  particulars  in  which  the  practical  operation  of  the  Con- 


262  Constitution  of  the  United  States 

stitution  has  been  next  to  marvelous,  there  is  none  in  which  it 
has  worked  more  successfully  than  in  fitting  itself  by  amend- 
ments to  the  advancing  opinions  of  mankind.  And  by 
judicial  construction  which  has  been  expressive  of  prevailing 
thought,  the  general  principles  stated  in  the  Constitution 
have  been  adapted  to  a  great  variety  of  conditions  of  in- 
dustrial, commercial,  and  legal  facts  of  which  the  Founders 
of  the  RepubUc  never  could  have  dreamed. 

As  for  more  than  a  century  and  a  quarter  of  unexampled 
social,  civil,  and  material  advancement,  in  which  it  has  been 
the  controlling  force,  the  Constitution  has  applied  itself, 
adapted  itself,  developed  itself,  amended  itself,  and,  through 
stress  and  shock  of  civil  war  the  like  of  which  no  other  con- 
stitution ever  felt,  maintained  its  equilibrium,  the  American 
has  reason  to  beHeve  that  his  fundamental  law  contains 
inherently  what  the  Scriptures  call  "the  power  of  an  end- 
less life." 

"  Love  thou  thy  land,  with  love  far-brought 
From  out  the  storied  Past,  and  used 
Within  the  Present,  but  transfused 
Through  future  time  by  power  of  thought. 


'  A  land  of  settled  government, 
A  land  of  just  and  old  renown, 
Where  Freedom  slowly  broadens  down 

From  precedent  to  precedent." 


A  LIST  OF  THE  LEADING  CASES  EXPOUND- 
ING THE  CONSTITUTION,  WITH  NOTES 
INDICATING  THE  TENOR  OF  EACH  CASE 


ACCUSED.    See  Criminal  PEOCEDfEE. 
ALIEN, 

entitled  to  equal  protection  as  though  citizen.    Truax  v.  Raich 

(1915),  239  U.  S.  33 243 

naturalization  of,  may  be  revoked  for  disloyalty.    United  States 

V.  Herberger  (1921),  272  Fed.  278 57 

ALIEN  CONTRACT  LABOR  LAW, 

held  not  to  exclude  minister  of  gospel .    Church  of  the  Holy  Trinity 

V.  United  States  (1892),  143  U.  S.  457         ....      6 
AMENDMENT, 

cannot  be  ratified  by  referendum  to  people.     Hawke  v.  Smith 

(1920),  253  U.  S.  221 171 

seven-year  limitation  of  ratification  of,  not  extra  constitutional. 

Dillon  V.  Gloss  (1921),  256  U.  S.  368  (374)    .        .        .        .256 

BANK  OF  UNITED  STATES, 

Act  of  Congress  creating  constitutional.    McCulloch  v.  Maryland 

(1819),  4  Wheat.  316 81 

BANKRUPTCY, 

Act  of  Congress  supersedes  State  insolvency  law.     Sturges  v. 

Crowninshield  (1819),  4  Wheat.  122   ^        .  .         .         •       S8 

debtor  imprisoned,  released  by  State  but  held  for  debt  to  Nation. 

United  States  v,  Wilson  (1823),  8  Wheat.  253        ..        .      59 
State  cannot  release  debt  owing  to  citizen  of  another  State. 

Brown  v.  Smart  (1892),  145  U.  S.  454 58 

State  law  may  release  debtor  as  to  future  but  not  past  con- 
tract.   Ogden  V.  Saunders  (1827),  12  Wheat.  132  (213)  .     58 
BILL  OF  ATTAINDER, 

in  law  of  West  Virghiia.    Pierdfe  v.  Carskadon  (1872),  16  Wall. 

234 86 

in  Missouri  constitution.    Cummings  v.  State  (1866),  4  Wall. 

277 86 


264  Table  of  Cases 


BILL  OF  RIGHTS  IN  PHILIPPINES, 

violated  by  unusual  punishment.    Weems  v.  United  States  (1910), 

217  U.  S.  349         .        .        . 224 


CHILD  LABOR, 

State  not  Congress  may  regulate.    Hammer  v.  Dagenhart  (1918), 

247  U.  S.  251 53 

CHINESE, 

born  in  United  States  of  permanent  resident  parents  is  citizen. 

United  States  v.  Wong  Kim  Ark  (1898),  169  U.  S.  649  .        .     238 
CITIZENSHIP, 

Negro  not  citizen,  therefore  without  standing  in  court.    Dred 

Scott  V.  Sandford  (1856),  19  How.  393  .        .        .        .237 

but  Fourteenth  Amendment  made  Negro  citizen  of  Nation  and 

State.     Slaughter-House  Cases  (1872),  16  Wall.  36        .        .     236 
CIVIL  RIGHTS  ACT  OF  1875,    § 

in  part  unconstitutional.     Civil  Rights  Cases  (1883),  109  U.  S. 

3  (24) 158,  234,  244,  250 

COMMERCE, 

defined  and  explained  by  Chief  Justice  Marshall.    Gibbons  v.  Og- 

den  (1824),  9  Wheat,  i 52 

stamp  tax  on  bill  of  lading  of  exports  unconstitutional.    Fairbank 

V.  United  States  (1901),  181  U.  S.  283 88 

State  cannot  prevent  piping  oil  or  gas  beyond  boundary.     Has- 
kell V.  Kansas,  elc.  (1912),  224  U.  S,  217       ....      51 
CONFISCATION  ACT  OF  JULY,   1862, 

upheld  as  constitutional.    Bigelow  v.  Forrest  (1869),  9  Wall.  339 ; 
Day  V.  Micou  (1873),  18  Wall.  156;  Miller  v.  United  States 

(1870),  II  Wall.  268 152 

CONTRACT, 

for  slave  valid  when  made  could  not  be  impaired  by  State  constitu- 
tion.   White  V.  HaA  (1871),  13  Wall.  646     .        .        .        .94 
See  also  Dartmouth  College  Case. 
State  cannot  impair,  by  repudiating  its  bank  notes.    Woodruff  v. 

Trapnall  (1850),  10  How.  190 92 

nor  by  withdrawing  ta^exemption  conferred  upon  Indian  land. 

New  Jersey  v.  Wilson  (1812),  7  Cranch.  164       ...       93 
not  impaired  by  New  York  rent  law.     Brown  v.  Feldman  (1921), 

256  U.  S.  170 94 

COPYRIGHT  CLAUSE, 

does  not  authorize  legislation  for  trade^marks.   Trdde-Mark  Cases 

(1879),  100  U.  S.  82 97 

CORPORATION, 

is  citizen  of  State  creating  it.     Bank  of  Unitid  States  v.  Deveaux 

(1809),  5  Cranch.  61 241 

not  citizen  of  United  States,  therefore  liberty  may  be  abridged  by 

State.    Western  Turf  Assoc,  v.  Greenberg  (1907),  204  U.  S.  359    241 


Table  of  Cases  265 


COURTS, 

can  exercise  authority  only  when  "case"  is  brought  for  relief. 

Osborn  v.  United  States  Bank  (1824),  9  Wheat.  738  (819)      .     138 

not  ousted  by  war  except  in  area  of  military  operations.  Cald- 
well V.  Parker  (1920),  252  U.  S.  376 146 

not  subject  to  review  by  referendum  to  people.    People  v.  West- 
em  Union  (Colorado,  1921),  198  Pac.  146      ....     343 
CRIMINAL  PROCEDURE, 

accused  not  denied  confrontation  by  reading  of  testimony  of  de- 
ceased witness  in  former  trial.  Robertson  v.  Baldwin  (1897), 
165  U.  S.  275 220 

d)dng  declaration  admissible  under  Constitution  against  accused. 

Mattox  V.  United  States  (1895),  156  U.  S.  237       .        .        .     220 

editor  cannot  be  tried  for  criminal  libel  in  foreign  district.    United 

States  z>.  Smith  (1909),  173  Fed.  227 148 

DARTMOUTH  COLLEGE  CASE, 

impairing  obligation  of  contract.    Trustees  v.  Woodward  (1819), 

4  Wheat.  463  (518) 93 

DUE  PROCESS  OF  LAW, 

defined  and  explained  by  Supreme  Court.    Murray's  Lessee  v. 

Hoboken,  etc.  (1855),  18  How.  272  (277)  ....  213 
denied  by  excessive  fines.  Ex  Parte  Young  (1908),  209  U.  S.  123  223 
denied  by  State  constitution  authorizing  referendum  on  judicial 

decisions.    People  v.  Max  (Colorado,  1921),  198  Pac.  150      .     243 

EDITOR.     5ee  Mail;  Newspaper;  Trial. 
EIGHTEENTH  AMENDMENT, 

regular  and  constitutional.    National  Prohibition  Cases  (1920), 

253U.  S.  350 V     ...     254 

seven-year  limitation  for  ratification  of,  valid.     OTlon  v.  Gloss 

(1921),  256  U.  S.  368  (374) 254 

ELECTIONS,  CORRUPT  PRACTICES  IN, 

Act  not  applicable  to  primaries.  Newberry  v.  United  States 
(j^2i),  256  U.  S.  232;  United  States  v.  Goodwell  (i9i7)j  243 

U.S.  476  (489) ^3 

Congress  may  safeguard  voters  at.    Ex  parte  Siebold  (1879),  100 

U.  S.  371 22 

EMANCIPATION  PROCLAMATION, 

supplemented  and  completed  by  war  Amendments.    Slaughter- 

House  Cases  (1872),  16  Wall.  36  (68) 233 

EQUAL  PROTECTION, 

denied  by  State  law  requiring  eighty  per  cent  employes  be  native 

citizens.  Truax  v.  Raich  (191 5),  238  U.  S.  33  .  .  .  243 
not  denied  by  State  law  restrictiilg  use  natural  gas  only  one  class. 

Walls  V.  Midland  (1920),  254  U.  S.  300  ....     245 

not  denied  to  Negro  by  State  law  requiring  separate  railway  ac- 
commodations.    Plessy  V.  Ferguson  (1896),  163  U.  S.  537     245 


266  Table  of  Cases 


EXPORTS, 

stamp  tax  on  bill  of  lading  unconstitutional.    Fairbank  v.  United 

States  (1901),  181  U.  S.  283 88 

EX  POST  FACTO, 

Act  of  Congress  held  to  be,  and  void.    Ex  parte  Garland  (1866), 

4  Wall.  333 87,  182 

law  defined  by  Supreme  Court.  Calder  v.  Bull  (1798),  3  Dallas, 
386  (390) ;  Cummings  v.  Missouri  (1866),  4  Wall.  277  (325, 
326) 86 

Solitary  confinement  added  to  death  penalty  after  act  com- 
mitted unconstitutional  as.    Medley,  Petitioner  (1890),  134 

U.  S.  160  (171) 86 

EXTRADITION, 

accused  hurried  from  State  on  legal  papers  before  time  to  bring 
habeas  corpus  not  denied  constitutional  right.  Pettibone  v. 
Nichols  (1906),  203  U.  S.  192 160 

nor  can  one  abducted  be  demanded  by  asylum  State.    Mahan 

V.  Justice  (1888),  127  U.  S.  700 161 

trial  only  on  charge  in  demand  in  international.    United  States  v. 

Rauscher  (1886),  119  U.  S.  407 160 

trial  on  different  charge  allowed  in  interstate.    Lascelles  v.  Georgia 

(1893),  148  U.  S.  537 160 

provision  in  Constitution  for  feturn  of  fugitive  not  mandatory. 

Kentucky  v.  Dennison  (i860),  24  How.  66     ...        .    159 


FARM  LOAN  BANK  ACT  OF  1916, 

upheld.    Smith  v.  Kansas  City,  etc.  (192 1),  255  U.  S.  181     .        .      49 
FIFTH  AMENDMENT, 

not  prohibitive  of  self-incrimination  in  State  court.  Twining  ».  New 

Jersey  (1908),  211  U.  S.  78 212 

FIFTEENTH  AMENDMENT, 

does  not  confer  suffrage  but  protects  existing  right.    United  States 

r.  Reese  (1875),  92  U.  S.  214 250 

but  when  "white"  remained  in  State  constitution  suffrage  neces- 
sarily conferred.  Ex  parte  Yarborough  (1884),  no  U.  S.  651 
(665) 251 

violated  by  "Grandfather's  Clause"  in  Amendment  of  19 10  to  con- 
stitution of  Oklahoma.  Guinn  v.  United  States  (1915),  238 
U.  S.  347 251 

violated  by  like  clause  in  law  of  1908  of  Maryland.    Myers  v. 

Anderson  (1915),  238  U.  S.  368 251 

FINES, 

excessive,  by  State  may  amount  to  denial  of  due  process.    Ex  parte 

Young  (1908),  209  U.  S.  123 223 

excessive,  not  prohibited  as  such  to  States  by  Eighth  Amendment. 
Waters-Pierce  etc.  v.  Texas  (1909),  212  U.  S.  86;  O'Neill  v. 
Vermont  (1892),  144  U.  S.  323  {zz^) 223 


Table  of  Cases  267 


FOOD  CONTROL  ACT  OF  1917, 

penal  provisions  void  for  indefiniteness.    United  States  v.  Cohen 

(1921),  255  U.  S.  81 218 

FOURTEENTH  AMENDMENT, 

distinguishes  between  State  and  National  citizenship.    Slaughter- 

House  Cases  (1872),  16  Wall.  36  (72) 236 

Chinese  born  in  United  States  of  permanent  resident  parents  citizen 

under.     United  States  v.  Wong  Kim  Ark  (1898),  169  U.  S. 

649 237 

not  intended  to  transfer  protection  of  all  civil  rights  to  Nation. 

Slaughter-House  Cases  (1872),  16  Wall.  36  (77)     .        .        .     236 
protects  others  with  liberated  Negro.    Buchanan  ».  Warley  (191 7), 

245  U.  S.  60 237 

reason  for,  stated  by  Supreme  Court.  •  Slaughter-House  Cas6s 

(1872),  16  Wall.  36  (70) 235 

violated  by  Arizona  Initiative  Law  of  19 15  requiring  80  per  cent 

employes  be  native  citizens.    Truax  v.  Raich  (191 5),  239  U.  S. 

33 243 

See  also  Citizenship  ;  Labor  ;  Woman. 
FREEDOM  OF  SPEECH  AND  PRINTING, 

cannot  extend  to  resistance  to  laws  in  time  of  war.    Schenck  v. 

United  States  (1919),  249  U.  S.  47 ;  Schaefer  v.  United  States 

(1920),  251 U.  S.  466 ;  Pierce  v.  United  States  (1920),  252  U.  S. 

239 W 201,  202 

nor  to  resistance  to  Nation  in  timA)f  war  under  constitution  of 

Minnesota.    State  v.  Hohn  (1918),  139  Minn.  267, 167  N.  W. 

181 203 

nor  does  it  permit  incitement  to  murder  or  overthrow  of  govern- 
ment under  constitution  of  New  York.   People  v.  Most  (1902), 

171  N.  Y.  423,  64  N.  E.  175 203 

See  also  Mail  ;  Newspaper. 
FUGITIVE  SLAVE  LAW  OF  1793, 

was  within  power  of  Congress  to  enact.    Prigg  v.  Pennsylvania 

(1842),  16  Pet.  539 162 

HOUSE  OF  REPRESENTATIVES, 

not  a  court ;  cannot  punish  non-member  for  contempt.  Kilboum 
V.  Thompson  (1880),  103  U.  S.  168;  Marshall  v.  Gordon 
(1917),  243  U.  S.  521 26,  27 

INCOME  TAX, 

Law  of  1894  held  invalid.    Pollock  v.  Farmers'  Loan  etc.  (1895), 

157  U.  S.  429         .        . II,  260 

Law  of  19 13  upheld;   taxing  power  not  extended.    Brushabert;. 

Union  Pacific  (1916),  240  U.  S.  i 252 

salaries  of  United  States  judges  not  subject  to.     Evans  v.  Gore 

(1920),  253  U.  S.  345 I3S»  252 


^68  Table  of  Cases 

INDICTMENT, 

by  grand  jury  may  be  dispensed  with  by  State.  Hurtado  v.  Cali- 
fornia (1884),  no  U.  S.  516  211 

INSULAR  CASES.    5eg  Territory. 

JUDGES, 

salaries  of,  not  taxable  as  income.    Evans  v.  Gore  (1920),  253  U.  S. 

245 135,252 

JUDICIAL  DEPARTMENT, 

cannot  interfere  with  execution  of  President's  power.  Mis- 
sissippi V.  Johnson  (1866),  4  Wall.  475 128 

Georgia  v.  Stanton  (1867),  6  Wall.  50  (57)     ....    167 
JUDICIAL  POWER, 

can  be  exercised  only  when  "case"  is  brought  for  relief.    Osborn  v. 

United  States  Bank  (1824),  9  Wheat.  738  (819)    .        .        .138 
JUDICIAL  REFERENDUM, 

provision    in    constitution    of    Colorado  for,  void.    People  v. 

Western  Union  (1921),  198  Pac.  146 243 

JURY, 

change  from  twelve  to  eight  invalid  as  to  crime  committed  before 

State  admitted.    Thompson  v.  Utah  (1898),  170  U.  S.  343    .    242 
military  tribunal  cannot  displace.    Ex  parte  Milligan  (1866),  4 

Wall.  2  (118) 146 

of  eight  persons  not  prohibited  to  State  courts.    Maxwell  v.  Dow 

(1900),  176  U.  S.  581 242 

LABOR, 

age  of  employe  may  be  limited.    Sturgis  v.  Beauchamp  (1913),  231 

U.  S.  320 243 

and  length  of  day  may  be  limited.    Atkin  v.  Kansas  (1903),  191 

U.  S.  207 240 

hours  of,  in  mines  and  smelters  may  be  limited  by  State.    Holden 

V.  Hardy  (1898),  169  U.  S.  366 239 

hours  of,  for  women  may  be  limited.    Muller  v.  Oregon  (1908),  208 

U.  S.  412 240,  242 

hours  of,  for  railway  employes  may  be  limited.    Wilson  v.  New 

(1917),  243  U.  S.  332 239 

Law  of  Oregon  of  1916  for  ten-hour  day  upheld.  Bunting  v.  Ore- 
gon (1917),  243  U.  S.  426 240 

laws  requiring  employer  protect  employe  against  machinery  and 
other  dangers  held  constitutional.  People  v.  Smith  (1896), 
108  Mich.  527,  66  N.  W.  382 243 

minimum  wage  for,  may  be  prescribed.    Stettler  v.  O'Hara  (191 7), 

243  U.  S.  629 240 

on  public  works  preference  may  be  given  citizen.    Heim  v.  McCall 

(1915),  239  U.  S.  175 240 

See  also  Child  Labor. 


Table  of  Cases  269 


LEGAL  TENDER  CASES, 

Brownson  v.  Rodes  (1868),  7  Wall.  229;  Hepburn  v.  Griswold 
(1870),  8  Wall.  603 ;  Knox  v.  Lee  (1870),  12  Wall.  457 ;  Juil- 
liard  v.  Greenman  (1884),  no  U.  S.  421        .        .        49,  61,  132 

MAIL, 

disloyal  newspapers  may  be  excluded  from.    Milwaukee  Pub.  Co. 

V.  Burleson  (1921),  255  U.  S.  407 302 

lotteries  may  be  excluded  from.    Ex  parte  Jackson  (1877),  96  U.  S. 

727;  In  re  Rapier  (1892),  143  U.  S.  no        .        .        .      64,  203 
MIGRATORY  BIRD  CASE, 

showing  supremacy  of  treaty.    Missouri  v.  Holland  (1920),  252 

U.  S.  416 178,  227 

MILITARY  COURT, 

unconstitutional  when  not  in  war  area.    Ex  parte  Milligan  (1866), 

4  Wall.  2(118) 128,146 

MILITIA, 

calling  of,  determined  by  President.    Houston  v.  Moore  (1820),  5 

Wheat.  I  (37) Ill 

NATION, 

cannot  take  private  property  without  just  compensation.    United 

States  V.  Lee  (1882),  106  U.  S.  196 215 

cannot  invade  domain  of  State  police  power.    Hammer  v.  Dagen- 

hart  (1918),  247  U.  S.  251 S3 

NATIONAL  COURTS, 

need  of,  stated  by  Chief  Justice  Marshall.    Bank  of  United  States 

V.  Deveaux  (1809),  5  Cranch.  61  (87) 137 

State  cannot  tie  up  non-resident  in  its  own  courts.    Prentis  v. 

Atlantic  etc.  (1908),  211  U.  S.  210 142 

NATIONAL  OFFICERS, 

triable  in  Federal  not  State  court  for  act  committed  in  line  of  duty. 

In  re  Neagle  (1890),  135  U.  S.  i 127 

NATIONAL  PROHIBITION  CASES, 

(1920),  253  U.  S.  350 .        .        .     171 

NATURALIZATION, 

may  be  revoked  for  disloyal  utterances.    United  States  v.  Her- 

berger  (1921),  272  Fed.  278      ...        .  •        •       57 

NEGRO, 
*^    caunot  be  excluded  by  ordinance  from  city  block  occupied  by 

•whitesg   Buchanan  v.  Warley  (191 7),  245  U.  S.  60        .        .     246 
not  denied  equal  protection  by  State  law  requiring  separate  rail- 
way accommodations.   Plessy  v.  Ferguson  (1896),  163  U.  S.  537     245 
such  restriction  valid  when  condition  in  deed.    Los  Angeles  v. 

Gary  (1920),  181  Calif.  680,  186  Pac.  596      ....    246 
See  also  Fifteenth  AME^fDMENT;    Foueteenth  Amendment; 
Thirteenth  Amendment. 


270  Table  of  Cases 


NEWSPAPER, 

violating  National  Defense  Act  excluded  from  mail.    Milwaukee 

Pub.  Co.  V.  Burleson  (192 1),  255  U.  S.  407    ....     202 

PARDON, 

President's  power  of,  beyond  control  of  Congress.    The  Laura 

(1885),  114  U.  S.  411  (413) 113 

PATENT, 

to  inventor  of  grain  reaping  machine.     Seymour  v.  McCormick 

(1853),  16  How.  480 66 

to  inventor  of  magnetic  telegraph.    O'Reilly  v.  Morse  (1853),  15 

How.  62 66 

PATENTEE, 

cannot  control  price  after  sale  by  him.    Boston  Store  v.  American 

Graphophone  (1918),  246  U.  S.  8 67 

POLICE  POWER, 

State  may  extend,  to  damage  or  destruction  of  property.    Mugler 

V.  Kansas  (1887),  123  U.  S.  623 95 

POLYGAMY, 

suppression  of,  not  interference  with  religious  freedom.    Mormon 

Church  V.  United  States  (1890),  136  U.  S.  i  (49)    .        .        .198 
PREAMBLE, 

although    indicating    general    purpose    not    source    of  power. 

Jacobson  v.  Massachusetts  (1905),  197  U.  S.  11  (22)      .        .        7 
PRESIDENT, 

courts  will  not  restrain  execution  of  powers  of.    Mississippi  v.  John- 
son (1866),  4  Wall.  475 128 

Georgia  v.  Stanton  (1867),  6  Wall.  50  (57)     .        .        .        .167 
enforces,  but  cannot  make  laws.     Ex  parte  Milligan  (1866),  4 

Wall.  2  (118) 128 

PRIVILEGES  AND  IMMUNITIES, 

of  citizens  defined.    Corfield  v.  Coryell  (1823),  4  Wash.  CC.  371 ; 

Slaughter-House  Cases  (1872),  16  Wall.  36  (76)     .        .     158, 239 
abridged  by  State  constitution  requiring  80  per  cent  native  em- 
ployes in  mines  and  smelters.    Truax  v.  Raich  (1915),  239  U.  S. 

33 243 

POWER  RESERVED  BY  STATES, 

Chicago  etc.  v  McGuire  (191 1),  219  U.  S.  549  .        ,        .        .227 
Gordon  v.  United  States  (1864),  117  U.  S.  697  (705)   .         .        .     226 
PROPERTY  DEVOTED  TO  PUBLIC  USE, 

public  acquire  interest  in.    Munn  v.  Illinois  (1867),  94  U.  S. 

"3 95 

PROPERTY  TAKEN  FOR  PUBLIC  USE, 

just  compensation  necessary  for.    United  States  v.  Lee  (1882),  106 

U.  S.  196       .        .        .        ,       , 215 

PUBLIC  POLICY  OF  STATE, 

when  against  full  faith  and  credit.    Andrews  v.  Andrews  (1903), 

188  U.  S.  14  . 159 


Table  of  Cases  271 


PUNISHMENT, 

by  excessive  fines  unconstitutional.     State  v.  Ross  (1910),  55  Ore. 

450,  106  Pac.  1022 324 

electrocution  not  cruel.    Malloy  v.  South  Carolina  (1915),  237 

U.  S.  180 8e» 

under  State  law  debarring  accused  from  occupation  unusual  and 

therefore  unconstitutional.    People  v.  Haug  (1888),  68  Mich. 

549 223 

See  also  Bill  of  Rights. 

RATIFICATION, 

referendum  cannot  be  used  in,  of  amendment.    National  Prohibi- 
tion Cases  (1920),  253  U.  S.  350    .        .        .        .        .        .171 

State  cannot  revoke.    Opinion  of  the  Justices  (Maine,  1919),  118 

Me.  544,  107  Atl.  673 171 

time  limit  for,  of  Eighteenth  Amendment  valid.    Dillon  v.  Gloss 

(1921),  256  U.  S.  368 256 

RELATIONS  BETWEEN  THE  STATES, 

chief  purpose  of  adoption  of  Constitution  to  bring  about  har- 
monious.   Ableman  v.  Booth  (1858),  21  How.  506  (517)      .      143 
RELIGIOUS  FREEDOM, 

not  justification  for  polygamy.    Mormon  Church  v.  United  States 

(1890),  136  U.  S.  I  (49) 198 

RENT, 

regulating  law  of  New  York  upheld  as  not  taking  property. 

Brown  Company  v.  Feldman  (1921),  256  U.  S.  170     .         .     95 
REPUBLICAN  FORM  OF  GOVERNMENT, 

what  constitutes,  a  political  not  a  judicial  question.  Luther  v. 
Borden  (1848),  7  How.  i ;  Georgia  v.  Stanton  (1867),  6  Wall. 
50  (S7);  Pacific  States  etc.  v.  Oregon  (191 2),  223  U.  S. 
118        .        .        .        . 167,  168 

SEARCH  AND  SEIZURE, 

Act  of  Congress  requiring  private  books  and  papers  in  evidence 

void.    Boyd  v.  United  States  (1886),  116  U.  S.  616       .        .    209 

information  gained  by  illegal  seizure  of  books  cannot  support  later 
demand.  Silverthome  etc.  v.  United  States  (1920),  251  U.  S. 
385 210 

mail  can  be  opened  by  Government  only  in  accordance  with  Con- 
stitution.   Ex  parte  Jackson  (1877),  96  U.  S.  727  .        .     201 

must  conform  strictly  to  constitutional  requirements.  Gouled 
V.  United  States  (192 1),  255  U.  S.  298 ;  Amos  v.  United  States 

(1921),  25s  U.  S.  313 212 

SELF-INCRIMINATION.    5ee  Fifth  Amendment. 
SLAVE, 

taken  to  England  became  a  free  man.    Somerset's  Case  (1772), 

Lofft's  Report,  I ;  20  Howell's  State  Trials,  79     .        .        .161 

See  also  Fugitive  Slave  Law.  . ' 


272  Table  of  Cases 


SOLITARY  CONFINEMENT, 

added  to  death  penalty  after  act  committed  uncbnstitutional  as 
ex  post  Jacto.     Medley,  Petitioner  (1890),   134  U.  S.   160 

(171) 86 

STATE, 

boundaries  and  other  controversies  between  States  made  justiciable 
by  Constitution.  Florida  v.  Georgia  (1854),  17  How.  478 
(494);  Rhode  Island  v.  Massachusetts  (1838),  12  Pet.  657 
(720) 140 

cannot  prevent  citizen  from  using  National  courts.    Prentis  v. 

Atlantic  etc.  (1908),  211  U.  S.  210  (228)        ....     142 

cannot  release  National  prisoner  by  habeas  corpus.    Ableman  v. 

Booth  (1858),  21  How.  506 127,  143 

cannot  require  detour  interstate  train  over  branch  line  already 
served.    St.  Louis  etc.  v.  Public  Ser.  Com.  (1921),  254  U.  S. 

535 51 

cannot  sue  Nation  when  consent  not  given.     Kansas  v.  United 

States  (1907),  204  U.  S.  331  •        •        •        .        .        .139 

cannot  try  National  officer  for  act  committed  in  line  of  duty.    In 

re  Neagle  (1890),  135  U.  S.  i 127 

cannot  be  sued  without  its  consent.    Smith  v.  Reeves  (1900),  178 

U.  S.  436 142 

STATE  PRIDE, 

not  offended  by  National  sovereignty.   Ableman  v.  Booth  (1858), 

21  How.  506  (524) 179,  183 

SUIT, 

against  State  maintainable  by  citizen  of  another  State.     Chisholm 

V.  Georgia  (1793),  2  Dallas,  419 142 

but  not  since  adoption  of  Twelfth  Amendment.     Hollingsworth 

V.  Virginia  (1798),  3  Dallas,  378 142 

SUPREME  COURT, 

has  original  jurisdiction  of  controversies  between  States.    Kansas 

V.  Colorado  (1907),  206  U.  S.  46;   Missouri  v.  Illinois  etc. 

(1906),  200  U.  S.  496 141 

States  have  bound  themselves  to  submit  to  decisions  of.    Ableman 

V.  Booth  (1858),  21  How.  506  (519)        ....     141,  183 
SUPREME  LAW, 

Constitution  invalidates  all  conflicting  laws.  National  Prohibi- 
tion Cases  (1920),  253  U.  S.  350 178 

Treaty  is,  prevailing  over  States.     Missouri  v.  Holland  (1920),  252 

U.  S.  416 178 

TENURE  OF  OFFICE  ACT, 

and  repeal  discussed  by  Supreme  Court.    Parsons  v.  United  States 

(1897),  167  U.  S.  324      ........      17 

TERRITORY, 

new,  comes  in  only  by  Act  of  Congress.    Insular  Cases,  i8«  U.  S.  i ; 


Table  of  Cases  273 


183  U.  S.  176;  190  U.  S.  197;  195  U.S.  138;  197  u.  s. 

516 72,  157,  222,  244 

THIRTEENTH  AMENDMENT, 

denounces  all  personal  servitudes  as  well  as  slavery.     Slaughter- 

House  Cases  (1872),  16  Wall.  36 -  233 

not  violated  by  law  for  compulsory  work  on  roads.  Butler  v.  Perry 

(1916),  240  U.  S.  328 234 

profound  effect  of,  stated  by  Court.     United  States  v.  Rhodes 

(1866),  27  Federal  Cases  No.  16151 233 

violated  by  law  making  criminal  a  refusal  to  perform  contract  to 

labor.     Bailey  v.  Alabama  (191 1),  219  U.  S.  219   .        .        .     234 
violated  by  State  law  requiring  one  convicted  to  work  out  fine  for 

bondsman.    United  States  v.  Reynolds  (19 14),  235  U.  S. 

133 233 

TRADE-MARK, 

legislation  not  authorized  by  Copyright  clause.    Trade-Mark 

Cases  (1879),  100  U.  S.  82 67 

TREATY, 

is  supreme  law  prevailing  over  States.      Missouri  v.  Holland 

(1920),  252  U.  S.  416 ^    .     -V  -178.  ^f 

TREASON,  r"^  \ 

and  overt  act  discussed  by  Chief  Justice  Marshall.    United  States 

V.  Burr  (1807),  25  Federal  Cases  Nos.  14692  et  seq.        .        .     149 
TRIAL, 

editor  cannot  be  taken  to  distant  district  for.    United  States  v. 

Smith  (1909),  173  Fed.  227 148 

leader  of  insurrection  may  be  imprisoned  without.    Moyer  v.  Pea- 
body  (1909),  212  U.  S.  78  (84)       .        .        .        .        .        .     217 


UNITED  STATES, 

cannot  be  sued  without  its  consent.    Louisiana  v.  McAdoo  (1914), 

234  U.  S.  627 139 

VOTE, 

right  to,  comes  from  State;  protection  to,  from  Nation.     Minor 

V.  Happersett  (1874),  21  Wall.  162 238 

United  States  v.  Cruikshank  (1875),  92  U.  S.  542  (556)  .    .    250 

WAR, 

does  not  oust  courts  except  in  area  of  military  occupation. 

Caldwell  v.  Parker  (1920),  252  U.  S.  376      ....     146 
WOMAN, 

did  not  receive  privilege  of  ^ting  through  Fourteenth  Amend- 
ment.    Minor  v.  Happersett  (1874),  21  WaU.  162         .        .     238 

marrying  alien  loses  citizenship  although  remaining  a  resident. 

Mackenzie  v.  Hare  (1915),  239  U.  S.  299       ....    238 


274  Table  of  Cases 


WORKMEN'S  COMPENSATION  LAW, 

of  State  need  not  give  jury  trial.    Hawkins  v.  Bleakly  (191 7),  243 
U.  S.  210;  New  York  Central  etc.  v.  White  (1917),  243  U.  S. 
188        ...........    221 

WYOMING, 

law  of,  conserving  natural  gas  not  denial   of  equal  protection. 

Walls  V.  Midland  (1920),  254  U.  S.  300         .        .        ,        .245 


\ 


INDEX 


INDEX 


Adams,  John.  Vote  as  Vice-Presi- 
dent saved  neutrality,  20;  oral 
messages  to  Congress,  122;  strife 
over  appointment  of  judges  by, 
132 ;  Sedition  Law  in  term  of,  200. 

Adams,  John  Quincy,  on  Jefferson's 
purchase  of  Louisiana,  81. 

Adoption  of  our  Constitutional  plan 
in  Australia,  Canada,  and  other 
countries,  ix. 

Alien,  Act  of  Congress  restricts 
ownership  of  land  in  Territories 
by,  57;  regulations  various  as  to 
owning  of  land  by,  56 ;  privileged 
to  vote  in  some  States,  57;  Amer- 
ican woman  marrying,  forfeits 
citizenship,  238;  State  constitu- 
tional provision  excluding,  labor 
void,  243.  See  also  Naturaliza- 
tion. 

Alien  Contract  Labor  Law  of  1885,  6. 

Amendment,  Lord  Bryce  commended 
American  plan  of,  ix ;  resolution  for, 
need  not  be  signed  by  President, 
42;  respecting  title  of  nobility 
failed  ^  90;  Congress  by  two-thirds 
vote  members  present  may  pro- 
pose, 170,  255;  Congress  may  de- 
termine mode  of  ratification,  1 70 ; 
conventions  in  States  have  never 
ratified,  170;  legislatures  have  not 
yet  proposed,  170;  legislatures 
of  two  thirds  of  States  may  call 
convention,  170;  ratification  of, 
170;  cannot  be  ratified  by  referen- 
dum, 171;  State  cannot  withdraw 
ratification,  1 71 , 2  55 ;  in  other  coun- 
tries, 172;  Lecky  praised  plan  of, 
172;  Washington  for,  not  usurpa- 
tion,! 72;  suggested  by  Presidents, 
173;  examples  of  late  proposals 
for,   174;    slavery  not  to  be  af- 


fected prior  to  1808  by,  174; 
State  cannot  be  deprived  of  equal 
suffrage  in  Senate  by,  without 
consent,  174;  and  Bill  of  Rights, 
194 ;  first  resolution  proposing,  194 ; 
long  period  without,  232;  table 
showing  time,  was  pending,  259. 

Amendments,  have  been  easily  and 
quickly  adopted,  261 ;  over  two 
thousand,  proposed,  261. 

Anti-Trust  Laws,  52. 

Appointment  to  Office,  and  Tenure 
of  Office  Act  of  1867,  16,  120; 
Congress  may  direct,  of  inferior 
grades,  120;  objection  in  Con- 
stitutional Convention  to  power  of, 
120;  power  of,  in  actual  practice, 
1 20 ;  vacancies  filled  by  President 
during  recess  of  Senate,  121; 
with  consent  of  Senate  President 
has  power  of,  120. 

Appropriation,  Jackson  on  menace 
of  Congressional,  45 ;  other  Pres- 
idents on  abuse  of,  46 ;  no  money 
drawn  from  treasury  except  by, 
88.    See  also  Money. 

Arms,  right  to  bear,  shall  not  be 
infringed  by  Congress,  206;  State 
law  may  limit,  206. 

Army,  Congress  alone  raises  and 
supports,  73;  no  appropriation 
for,  for  more  than  two  years,  73; 
English  fear  of  standing,  73; 
Hamilton's  views  on,  74;  op- 
position to,  in  Constitutional 
Convention,  74 ;  raising  and  equip- 
ment of,  in  World  War,  75 ;  not 
dangerous  at  home,  75;  rules 
governing,  made  by  Congress,  76 ; 
President  commander  in  chief 
of,  no.  See  also  Quartering 
Troops;  War. 


278 


Index 


Arthur,  Chester  Alan,  vetoed  ob- 
jectionable appropriations  by  Con- 
gress, 46. 

Articles  of  Confederation,  adoption 
delayed  by  dispute  over  western 
lands,  xiii,  163;  soon  found  in- 
adequate, xiii;  convention  at 
Annapolis  1786  to  revise,  xiii; 
convention  at  Philadelphia  1787 
drafted  Constitution,  xiv;  each 
State  sovereign  and  independent 
under,  i;  Articles  cast  aside,  i; 
mere  League  of  States,  2;  Con- 
gress to  make  adequate  govern- 
ment, 2;  Washington's  opinion 
of  government,  2 ;  lack  of  National 
powers  under,  5;  Congress  of 
one  House  under,  8;  deficient 
in  taxing  power,  44;  money 
borrowed  only  with  assent  of  nine 
States,  48;  Congress  had  sole 
power  over  weights  and  measures, 
61 ;  States  to  coin  money,  61 ; 
Congress  to  regulate  value  of 
money,  61 ;  authorized  establish- 
ment of  post  ofl&ces,  63;  copy- 
rights not  mentioned  in,  65; 
authorized  Congress  to  establish 
courts  to  suppress  piracies,  69; 
Congress  given  war  powers  by, 
70;  weak  in  raising  and  main- 
taining armies,  75 ;  required  States 
to  maintain  accoutred  militia,  76 ; 
Nation  permitted  to  appoint  some 
militia  oflScers,  77;  no  President 
under,  99;  no  judiciary  under, 
137;  granted  privileges  and  im- 
munities to  citizens,  157 ;  provided 
for  admission  of  new  States  and 
of  Canada,  162 ;  concurrence  of 
every  State  necessary  to  amend- 
ment of,  1 70. 

Assembly,  Congress  forbidden  to 
abridge  right  of,  204;  Colonial, 
frequently  dissolved,  205;  must 
be  peaceable,  205;  preserved  in 
early  State  constitutions,  205 ; 
regulations    for     order     in,     not 


abridgment,  205.  See  also  Peti- 
tion, Right  or. 
Australia,  constitution  of,  follows  that 
of  United  States  closely,  ix;  con- 
stitution of  1900  of,  made  union 
indissoluble,  4;  Senate  of,  per- 
petual, 19;  commerce  clause  sim- 
ilar to  that  of  United  States,  53; 
judicial  system  of,  similar,  138; 
permits  citizen  to  sue  State,  142, 
228;  constitution  supreme  law, 
181. 

Bail,  English  law  concerning  ex- 
cessive, 222;  for  assailant  of 
President  Jackson,  222;  excessive, 
not  to  be  required,  222;  reason- 
able, defined,  222. 

Bank  of  the  United  States,  Act  of 
Congress  establishing,  8 1 .  See  also 
Implied  Powers. 

Bankruptcy,  Congress  has  juris- 
diction of,  57;  various  Acts  by 
Congress,  57;  debts  from  which 
no  release  allowed,  58 ;  exemptions 
to  which  bankrupt  entitled,  58; 
involuntary,  defined,  58;  uniform 
National  law  of,  suspends  State 
laws,  58;  State  law  cannot  re- 
lease from  existing  debts,  58 ;  State 
law  cannot  affect  creditors  in 
other  States,  58;  voluntary,  de- 
fined, 58.    See  also  Debtor. 

Beveridge,  Albert  J.,  Life  of  John 
Marshall  cited,  132. 

Bill  of  Attainder,  Congress  shall  not 
pass,  84;  Macaulay  on  injustice 
of,  84;  use  of,  in  English  history, 
84;  presented  against  Jefferson 
in  'Parliament,  85;  State  shall 
not  pass,  91 ;  in  the  Civil  War, 
152.    See  also  Bill  of  Rights. 

Bill  of  Rights,  demanded  by  States 
as  condition  of  ratification,  196; 
in  the  body  of  the  Constitution,  1 
196 ;  in  first  ten  Amendments,  197 ; 
of  Philippine  Islands,  decision 
under,  224. 


Index 


279 


Blackstone,  William,  defines  liberty 
of  the  press,  199 ;  on  cruel  punish- 
ment for  treason,  223. 

Brazil,  constitution  of  1890  of,  makes 
union  indissoluble,  4;  Senate  like 
that  of  United  States,  17;  com- 
merce clause  similar  to  ours,  53; 
judges  appointed  for  life,  134; 
Vice-President  succeeds  during 
temporary  disability  of  President, 
109;  bills  to  abolish  federation 
or  to  destroy  equality  in  Senate 
not  subjects  for  deliberation,  175. 

Bryce,  James,  opinion  of  the  Con- 
stitution, ix;  praises  plan  of 
amending,  ix;  on  the  equal  rep- 
resentation in  Senate,  17;  on 
great  power  wielded  by  Lincoln, 
100. 

Burke,  Edmund,  high  opinion  of 
American  legal  learning,  xi. 

Burr,  Aaron,  elected  Vice-President 
by  House  of  Representatives,  106 ; 
tried  for  treason  and  acquitted, 
149. 

Cabinet,  the.  President  may  re- 
quire opinions  of,  112;  when 
created  by  Congress,  112;  Presi- 
dent independent  of,  112 ;  in  other 
countries,  113. 

Calhoun,  John  C,  his  theory  of  the 
State  as  judge  of  constitutional 
questions,  3. 

Canada,  statement  by  Bryce  that, 
copied  our  Constitution,  ix ;  repre- 
sentation in  Senate  similar,  18; 
commerce  clause  like  that  of 
United  States,  53 ;  judicial  system 
follows  that  of  United  States,  138 ; 
Privy  Council  may  review  Supreme 
Court  of,  138;  Articles  of  Con- 
federation provided  for  ad- 
mission of,  162 ;  assumed  existing, 
debts,  176;  Dominion  of,  has  all 
powers  not  delegated  to  Province, 
227. 

Census,  first,   to  be   taken   within 


three  years  after  first  meeting  of 
the  Congress,  13 ;  every  ten  years 
thereafter,  13. 

Charles  I  of  England,  attitude  to- 
wards Parliament,  125. 

Chase,  Salmon  P.,  decision  in  first 
Legal  Tender  Case,  48. 

Children,  laws  prohibiting  employ- 
ment of,  not  denial  of  liberty,  243. 

Chinese,  a  citizen  when  born  of 
domiciled  parents,  238;  denied 
equal  protection  by  city  ordinance 
compelling  cutting  of  hair,  245; 
not  denied  equal  protection  by 
requirement  for  separate  schools, 
245. 

Citizens,  all  persons  born  in  United 
States  or  naturalized  are,  3,  235 ; 
Fourteenth  Amendment  made 
Negroes,  3,  235;  not  in  contact 
with  Nation  under  theory  of 
States'  Rights  but  Fourteenth 
Amendment  changed  this,  3; 
present  doctrine  of,  stated  by 
James  Wilson  in  Convention,  4; 
Gibbon  quoted  on  extension  of 
Roman  citizenship,  55;  Roman 
citizenship  conferred  on  other 
peoples,  55;  by  Articles  of  Con- 
federation free,  of  one  State  given 
privileges  in  all,  157;  provisions 
in  colonial  charters  and  Articles 
of  Confederation,  157;  reciprocity 
of  privileges  in  all  States,  157; 
Civil  Rights  Act  held  invalid  in 
part,  234,  249;  Supreme  Court 
on  need  of  Fourteenth  Amendment, 
23  s;  State  citizenship  preserved 
by  Supreme  Court,  236;  Negroes 
not,  according  to  Dred  Scott 
decision,  237;  Chinese  born  of 
domiciled  parents  are,  238;  State 
forbidden  to  abridge  privileges 
or  immunities  of,  238;  woman 
marrying  alien  forfeits  citizenship, 
238 ;  State  may  abridge  privileges 
and  immunities  of  State  citizen- 
ship, 239 ;  State  may  restrict  em- 


S80 


Index 


Citizens  (cont.) 

ployment  on  public  work  to,  240 ; 
equal  protection  not  denied  by- 
State  literacy  law,  245;  right  to 
vote  not  to  be  abridged  for  color, 
250;  Fifteenth  Amendment  ex- 
plained by  Supreme  Court,  250.  See 
also  Privileges  and  Immunities. 

Civil  War,  Income  Tax  of,  sustained, 
11;  three  compromises  of  1787 
called  beginning  of,  12;  habeas 
corpus  privilege  suspended  during, 
83;  Christmas-day  pardon  by 
President  Johnson,  113 ;  necessary 
to  enlarge  jurisdiction  of  courts 
during,  140;  military  tribunals 
prevented  from  usurping  juris- 
diction, 146 ;  attainder  of  treason 
and  confiscation  and,  152;  de- 
cisions for  Union  during,  154; 
Southern  participants  excluded 
from  Congress,  247 ;  Congress  au- 
thorized to  remove  disability,  248 ; 
disability  fully  removed,  248. 

Clayton  Act  of  1914,  52. 

Cleveland,  Grover,  refused  to  obey 
Tenure  of  Office  Act,  16;  vetoed 
river  and  harbor  bills,  46 ;  Senate's 
threat  on  confirmations  to,  120; 
dismissal  of  British  Ambassador, 
125. 

Commerce,  clause  result  of  compro- 
mise, 50;  Congress  given  power 
to  regulate,  50 ;  importance  of, 
clause  shown,  50;  cases  arising 
under,  clause,  51 ;  clause  suggested 
by  Monroe,  51;  legislation  by 
Congress  under,  clause,  52;  de- 
fined in  early  case  by  Supreme 
Court,  52;  Australia,  Canada 
and  Brazil  adopted,  clauses,  53; 
preference  of  ports  prohibited,  88 ; 
ships  between  ports  of  Nation  not 
to  pay  duties,  88 ;  States  forbidden 
to  lay  duties  on,  96. 

Coromon  Defence,  Constitution  or- 
dained partly  for  this,  4;  under 
Articles  of  Confederation  separate 


State  action  for,  4 ;  States  dilatory 
or  unresponsive  in,  4 ;  Nation  now 
raises  money  and  takes  action 
for,  5;  examples  of  National 
action  for,  under  Constitution, 
5;  taxes  imposed  by  Congress 
for,  45. 

Compromises  of  the  Constitution, 
three  respecting  slavery,  12; 
commerce  clause  result  of,  50; 
Washington's  letter  to  Congress 
referred  to,  186. 

Confiscation  Act  of  1862,  152. 

Congress,  all  legislative  powers 
possessed  by,  8 ;  consists  of  Senate 
and  House  of  Representatives,  8; 
may  regulate  election  of  members, 
22 ;  must  assemble  at  least  once 
each  year,  24 ;  reasons  for  annual 
assembling,  24;  practice  in  other 
countries,  25 ;  attendance  of  mem- 
bers may  be  compulsory,  26; 
each  House  judge  of  qualification 
of  members,  26 ;  admission  denied 
for  disloyalty,  26;  each  House 
makes  rules  and  may  expel  mem- 
bers, 26;  quorum  of  each  House 
consists  of  a  majority,  26 ;  neither 
House  can  adjourn  for  more  than 
three  days  without  consent  of 
other,  28;  journal  must  be  kept 
by  each  House,  28;  sessions  of 
both  Houses  in  same  place,  28; 
practice  in  other  countries,  29; 
compensation  to  be  fixed  by  law, 
29 ;  pay  to  legislators  an  American 
innovation,  29;  to  be  paid  from 
National  treasury,  29;  Madison 
opposed,  fixing  own  salary,  30; 
"salary-grab"  by,  30;  members 
of,  privileged  from  arrest  during 
attendance,  31 ;  members  not  ques- 
tioned elsewhere  for  utterance 
in  debate,  31 ;  member  not  eligible 
for  office  salary  of  which  increased 
during  term,  32;  member  can 
hold  no  other  National  office  at 
same  time,  33;   similar  provision 


Index 


281 


in  State  constitutions,  34;  and 
in  Articles  of  Confederation,  34; 
how  bills  are  enacted  into  law,  38 ; 
President  may  veto,  38;  can  be 
passed  over  veto,  38;  Jackson 
on  menace  of  appropriations  by, 
45 ;  had  power  to  create  Federal 
Land  Bank,  49;  determines  when 
new  territory  becomes  part  of 
United  States,  72 ;  to  be  informed 
of  state  of  the  Union  by  President, 
121 ;  has  right  to  call  for  informa- 
tion, 122;  President  may  call 
special  session  of,  123;  President 
may  adjourn,  when  Houses  dis- 
agree, 124;  not  authorized  to 
conduct  foreign  affairs,  126; 
opinion  of,  on  what  is  impeach- 
able conduct,  129;  first  established 
inferior  courts,  132 ;  has  power  to 
declare  punishment  of  treason, 
151 ;  amendment  may  be  pro- 
posed by,  170;  determines  mode  of 
ratifying  amendments,  170;  "two- 
thirds  of  both  Houses"  means 
of  quorum  not  of  membership,  255. 
Affirmative  Powers  of:  enumera- 
tion complete,  43-79;  make  all 
laws  necessary  and  proper  to 
carry  out,  79 ;  Negative  or  Withheld 
Powers  of:  82;  apportioning 
capitation  and  direct  taxes,  87; 
appropriating  money  except  by 
law,  88 ;  no  titles  of  nobility,  89 ; 
passing  bills  of  attainder,  84;  ex 
post  facto  laws,  85 ;  preferences  for 
ports,  88 ;  no  prohibition  of  impor- 
tation of  slaves  before  1808,  82; 
suspending  habeas  corpus,  82 ;  taxes 
or  duties  on  exports,  87;  estab- 
lishing or  prohibiting  free  exercise 
of  religion,  197 ;  abridging  freedom 
of  speech  or  press,  198 ;  abridging 
right  of  assembly  and  petition,' 
204 ;  infringing  right  to  bear  arms, 
206;  violation  of  right  of  people 
to  security  in  homes  and  papers, 
206,  208. 


Constitution,  history  of  clauses  of, 
necessary  to  understanding  of 
them,  vii;  necessary  to  bind  man 
in  power,  viii;  followed  by  those 
of  other  countries,  ix;  most  re- 
markable example  of  rigid,  ix; 
principles  of,  not  easily  formulated, 
x;  many  plans  for,  prepared  be- 
fore Convention,  xi;  brought  in 
Nation  with  government  by  people, 
I ;  God  not  mentioned  in,  5,  186 ; 
ordained  for  common  defence  and 
general  welfare,  5;  purpose  of, 
stated  by  Supreme  Court,  143; 
amendment  of,  170;  supreme  law 
of  land,  176;  ratification  of  orig- 
inal, 185 ;  objections  to,  186 ;  prom- 
inent men  in  opposition  to,  187; 
adopted  by  Constitutional  Con- 
vention, 189;  establishment  of, 
most  important,  190. 

Constitutional  Convention,  aided 
in  task  by  constitutions  of  the 
several  States,  x;  contained  men 
of  experience  and  learning,  xi; 
many  plans  prepared  before  con- 
vening of,  xi ;  education  in  Amer- 
ica at  time  of,  xii;  task  to  frame 
super-structure  to  deal  with 
National  and  foreign  affairs,  xii; 
Washington  chosen  to  preside  over, 
xiv;  scope  of  authority  of,  i; 
restricted  powers  of  certain  dele- 
gates, I ;  James  Wilson  stated 
present-day  doctrine  of  citizen- 
ship, 4;  debates  on  election  of 
Senators,  18;  discussed  office- 
holders in  Congress,  ^z'i  refused 
power  to  Congress  to  emit  bills, 
48;  discussion  of  war  power  by, 
70 ;  opposition  to  standing  army, 
74;  concerning  the  President  and 
his  powers,  100,  loi ;  election 
of  President,  102;  on  treaty 
making,  114;  on  appointing  power 
of  President,  120;  Rhode  Island 
absent  from,  188;  delegates  pres- 
ent signing  and  refusing  to  sign,  188, 


282 


Index 


Constitutional  Convention  (cont.) 
189 ;  Madison's  journal  chief  record 
of,  188 ;  sessions  held  in  secret,  188 ; 
length  time  in  session,  190;  Fiske 
on  immortal  work  of,  190;  re- 
ligious freedom  clause  failed  of 
adoption  in,  198. 

Continental  Congress,  provisional 
government  after  breach  with 
England,  xiii;  Monroe's  praise 
of,  xiii. 

Contracts,  State  shall  not  impair 
obligation  of,  91 ;  meaning  and 
examples,  92-94;  stay  laws  and, 
92 ;  State  cannot  evade  own,  92 ; 
decisions  on  impairing,  93;  right 
of,  not  denied  by  limiting  hours 
of  labor,  240. 

Cooley,  Thomas  M.,  defines  repub- 
lican form  of  government,  166; 
on  legislator's  duty  to  observe 
supreme  law  of  the  land,  177; 
states  citizens'  right  to  privacy, 
209. 

Copyright,  not  mentioned  in  Articles 
of  Confederation,  65;  Congress 
grants,  65;  English  law  of,  65; 
law  of  1790,  65;  law  developed 
by  Story,  66 ;  no,  in  trade-marks, 
67. 

Corporation,  person  within  meaning 
of  Fourteenth  Amendment,  241 ; 
not  National  citizen  and  privi- 
leges may  be  abridged  by  State, 
241. 

Counterfeiting,  punishable  by  Con- 
gress, 62 ;  what  may  not  be  coun- 
terfeited, 63.     See  also  Money. 

Courts  (the  inferior  National),  Con- 
gress authorized  to  constitute,  68; 
the  Circuit  Court  of  Appeals,  68, 
132 ;  Court  of  Claims,  68,  133, 139 ; 
Court  of  Customs  Appeals,  68, 
^33'f  Consular  Courts,  69,  133; 
District  Courts,  68,  133;  Monroe 
on  importance  of,  68;  judges  of, 
subject  to  impeachment,  129; 
Hamilton  on  duty  of,  130 ;  judicial 


power  vested  in,  and  Supreme 
Courts,  131 ;  First  Congress  estab- 
lished, 132;  salary  of  judges  of, 
not  to  be  diminished,  133;  other 
tribunals  somewhat  resembling 
^23 ;  judges  hold  oflSce  during  good 
behavior,  133;  State  cannot  pre- 
vent removal  of  lawsuits  to,  140; 
State  cannot  abridge  right  of  citi- 
zen to  invoke,  142,  158.  See  also 
Judicial  Department;  Supreme 
Court. 

Courts  (State),  bound  by  National 
Constitution,  179;  Dicey's  opinion 
of,  180. 

Crime,  indictment  for,  by  grand 
jury  necessary,  210;  law  de- 
claring act  a,  must  be  clear,  218. 

Davis,  Jefferson,  his  ingenious 
defence  to  charge  of  treason,  248. 

Debt.    See  Public  Debt. 

Debtor,  bankruptcy  clause  for  re- 
lief of,  57;  rigor  of  the  laws 
respecting,  59-60;  not  protected 
by  Articles  of  Confederation,  57; 
First  Congress  endorsed  imprison- 
ment of,  60;  Georgia  founded 
for,  60 ;  discharge  from  prison  and 
liability  recommended  by  Jackson, 
59 ;  States  had  aided,  by  stay  laws 
and  paper  money,  92.  See  also 
Bankruptcy. 

Decatur,  Stephen,  vanquished  Bar- 
bary  pirates,  69. 

Declaration  of  Independence,  on 
King's  dissolving  representative 
houses,  25;  on  King's  veto,  41; 
on  obstructing  naturalization,  53; 
on  term  and  salaries  of  judges, 
134;  on  transportation  beyond 
seas  for  trial,  147 ;  on  petitions  an- 
swered by  repeated  injury,  205; 
on  quartering  troops  on  people, 
207. 

Declaration  of  Rights : 
Colonial,  1765,  discussed  taxation, 
34;    demanded   jury   trial,    145; 


Index 


283 


followed  English  practice,  195. 
Colonial,  1774,  protested  tax  acts, 
35 ;  protested  dependence  of 
judges  on  king  for  salaries,  134; 
demanded  jury  trial,  145 ;  pro- 
tested trial  abroad,  147;  claimed 
right  to  assemble,  195,  205 ; 
stated  two  Houses  should  be  in- 
dependent, 195 ;  protested  quarter- 
ing of  troops,  207. 
English  Declaration,  i68g,  William 
and  Mary,  33,  36,  205,  207,  213. 
Petition  of  Rights  referred  to,  36, 
92,  207,  217. 

Declaration  of  War.    See  War. 

Defence,  Congress  has  power  to 
provide  for  common,  45. 

Dicey,  A.  V.,  on  imprisonment  for 
debt  in  England,  60;  praises 
judicial  system  as  unique,  180. 

District  of  Columbia,  history  of 
clause  establishing,  78;  Jefferson 
transferred  government  from 
Philadelphia  to,  78;  how  site  of 
city  of  Washington  was  chosen, 
78;  Congress  has  exclusive  power 
to  legislate  for,  78;  cornerstone 
of  Capitol  laid  by  Washington,  78. 
"v    See  also  Washington,  City  or. 

T)ue  Process  of  Law,  no  person  to 
be  denied,  by  Nation,  213;  in 
English  Petition  of  Right,  213; 
defined  by  Supreme  Court,  214; 
not  to  be  denied  by  State,  241 ; 
not  denied  by  State  abolition  of 
grand  jury,  242 ;  nor  by  majority 
verdict  of  trial  jury,  242;  labor 
laws  upheld  as  not  denial  of, 
242;  State  referendum  on  judi- 
cial decisions  a  denial  of,  243. 

Duties,  Congress  has  power  to 
impose,  63 ;  State  cannot  impose, 
without  consent  of  Congress,  96. 

Eighteenth  Amendment,  first  to 
contain  time  limit  for  adoption, 
256.  See  also  Liquors,  Intoxi- 
cating. 


Election,  principal  Constitutional 
legislative  ana  executive  officers 
chosen  by,  9;  different  in  other 
countries,  9;  Hamilton  on  quali- 
fications for  voters,  10;  property 
qualifications  for  voters  in,  in 
early  days,  10;  of  Senators  at 
first  by  State  legislatures,  18; 
Congress  may  regulate,  of  mem- 
bers, 22,  23;  Corrupt  Practices 
Act  of  1910  and,  23;  corruption 
in  English,  described  by  Green, 
22;  Congress  has  no  power  over 
primary,  23;  of  President  and 
Vice-President  by  electors,  103; 
reasons  for  change  in,  of  President, 
105;  of  Washington  and  Adams, 
105;  Congress  may  fix  time  of, 
of  Presidential  electors,  106;  of 
President  changed  by  Twelfth 
Amendment,  229;  controversy 
over  Hayes-Tilden,  in  1876,  230; 
Electoral  Count  Act  1887,  230; 
right  to  vote  protected  by  Fif- 
teenth Amendment,  250 ;  of  Sena- 
tors by  direct  vote  of  people,  252. 
See  also  Suffrage. 

Electoral  Count  Act  of  1887,  231. 

Eleventh  Amendment,  protects 
State  from  suit,  228. 

Employers'  Liability  Act  of  1908,  52. 

Equal  Protection  of  the  Law,  in- 
stances of  denial  or  non-denial  of, 
243-246. 

Executive  Department.  See  Presi- 
dent, The. 

Exports,  Congress  cannot  tax,  87; 
only  limitation  on  taxing  power 
of  Congress,  87 ;  illustrative  cases, 
88 ;  State  forbidden  to  tax,  96. 

Ex  Post  Facto  Law,  definition  of,  85 ; 
Nation  prohibited  enacting,  85; 
illustrative  cases,  86;    State  can- 

,  not  enact,  91.  See  also  Bill  of 
Rights. 

Extradition  (Interstate),  fugitive 
charged  with  crime  to  be  given 
up,  159;    clause  not  mandatory, 


284 


Index 


Extradition  (Interstate)  {cont.) 
159;     practice    illustrated,     160; 
international     rule    stated,    160; 
asylum     State     cannot     demand 
return  of  one  forcibly  taken,  161. 


"Federalist,  The",  61 ;  on  the  mili- 
tary forces,  74;  and  the  capita- 
tion tax,  87;  on  the  Executive 
Department,  98;  advocates  a 
single  executive,  101 ;  on  the 
emoluments  of  the  President,  no; 
on  the  treaty-making  power,  114; 
on  the  functions  of  the  courts, 
130;  on  the  respective  powers  of 
the  several  Departments,  137-138; 
Madison  on  the  ratification  of  the 
Constitution  in,  185;  the  origin 
of,  187;  its  great  influence  in 
moulding  opinion  favorable  to  the 
Constitution,  187;  principal  con- 
tributors to,  187;  its  world-wide 
popularity,  188;  on  delegated  and 
reserved  powers  under  the  Con- 
stitution, 227. 

Federal  Land  Banks,  49. 

Federal  Trade  Commission  Law  of 

1914,  52,  133. 

Felonies,  Congress  can  define,  69. 

Fifteenth  Amendment^  effect  of, 
stated  by  Supreme  Court,  250; 
"Grandfather's  Clause"  cases  re- 
pugnant to,  251.  See  also  Suf- 
frage. 

Fines,  excessive,  222,  223. 

Fiske,  John,  opinion  of  judicial 
system,  131 ;  on  achievement  of 
Constitutional  Convention,  190. 

Food  Control  Act  of  191 7,  218. 

Fourteenth  Amendment,  made  clear 
the  doctrine  of  dual  citizenship, 
3,  236 ;  rent  law  of  New  York  not 
inconsistent  with,  95;  confers 
citizenship  on  all  bom  or  naturalized 
here,  235 ;  necessary  to  supple- 
ment Thirteenth  Amendment, 
235 ;  construed  by  Supreme  Court, 


236;  did  not  destroy  or  change 
State  citizenship,  236;  struck 
"  white"  from  State  constitutions 
and  laws,  236;  did  not  confer 
suffrage  on  women,  238.  See 
also  Citizens  ;  Slavery. 

France,  neutrality  towards,  preserved 
by  vote  of  Vice-President,  20; 
treaty  with,  abrogated  in  1789, 
iiS>  123;  efforts  to  restrain 
legislative  power  in,  180  ;  "  The 
Federalist"  translated  in,  188; 
American  sympathy  for,  in  French 
Revolution,  200;  Sedition  Law 
deemed  necessary  to  control,  200; 
interference  with  our  neutrality 
by  Minister  from,  200. 

Franklin,  Benjamin,  disturbed  by 
discord  in  Convention,  17 ;  opposed 
to  power  of  appointment^  of  Presi- 
dent, 120. 

Freedom  of  the  Press.  See  Press, 
Freedom  of  the. 

Freedom  of  Religion.  See  Re- 
ligious Freedom. 

Freedom  of  Speech.  See  Speech, 
Freedom  of. 

Fugitive  from  Justice.  See  Ex- 
tradition. 

Fugitive  Slaves,  Acts  of  1793  and 
1850  for  return  of,  161 ;  clause 
directing  return  of,  and  Somerset's 
Case,  161 ;  Daniel  Webster  on, 
162;  and  Northwest  Territory, 
162.    See  also  Slavery. 

Gibbon,  Edward,  on  extension  of 
Roman  citizenship,  55;  on  harsh 
treatment  of  debtors  by  Romans, 
60. 

God,  not  mentioned  in  Constitution, 
5;  referred  to  in  Declaration  of 
Independence,  Articles  of  Con- 
federation, early  State  constitu- 
tions and  Australian  Constitution, 
5-6. 

Government.  5ge  Republican  Form 
OF  Government. 


Index 


285 


Grand  Jury.    See  Crime. 

Grant,  Ulysses  S.,  asked  repeal  of 
Tenure  of  Office  Act,  i6;  vetoed 
river  and  harbor  bills,  46;  called 
attention  to  abuses  of  naturaliza- 
tion, 56 ;  sought  nomination  for  a 
third  term,  loi ;  maintained  pre- 
rogative in  foreign  affairs,  126. 

Green,  J.  R.,  describes  corruption 
in  English  elections,  23. 

Greenback  Cases.    See  Money. 

Habeas  Corpus,  history  of,  in  Eng- 
land and  America,  82;  to  be 
suspended  only  for  public  safety, 
82;    Congress  has  power  to  sus- 

.  pend,  not  President,  83;  Lincoln 
criticised  for  suspending,  83;  may 
be  suspended  on  suspicion  of 
treason  in  England,  84.  See  also 
Bill  of  Rights. 

Hague  Tribunal,  its  purpose  and 
history,  118. 

Hallam,  Henry,  on  ofl5ce-holders  in 
House  of  Commons,  Z2) ;  on  cruel 
punishments  in  Europe,  149,  224; 
illegality  of  English  trials  for 
treason,  151;  on  conviction  of 
Raleigh,  151;  defines  liberty  of 
the  press,  198 ;  history  of  licensing, 
199. 

Hamilton,  Alexander,  drafted  com- 
plete plan  for  Constitution,  xi; 
on  property  and  other  qualifi- 
cations for  voters  in  States,  10; 
silent  but  favorable  operation  of 
veto,  40;  money  essential  agency 
of  government,  44;  approved 
restrictions  on  appropriations  for 
army,  74;  with  Jefferson  settled 
controversy  over  National  Capital, 
78;  favored  capitation  taxes,  87; 
favored  a  strong  executive,  98, 
loi;  on  stability  of  President'* 
salary,  no;  states  principle  of 
treaty-making,  114;  on  duty  of 
courts  to  declare  prohibited  acts 
un(fonstitutional,\  130;     on   com- 


parative power  of  three  depart- 
ments, 137;  on  clause  protecting 
State  from  partition,  165. 

Harding,  Warren  G.,  called  Vice- 
President  to  Cabinet  conferences, 
21 ;  on  States'  evading  their  duty, 
46;  appointed  two  Senators  to 
Washington  Conference,  117. 

Hayes,  Rutherford  B.,  asked  for 
repeal  of  Tenure  of  Oflace  Act,  16 ; 
controversy  over  election  of,  in 
1876,  230. 

Henry,  Patrick,  opposition  to  Con- 
stitution based  on  the  Preamble,  i. 

House  of  Representatives,  terms,  age 
and  qualifications  for  membership 
of,  8-10;  apportionment  of  mem- 
bership, 10-15,  246 ;  has  sole  power 
of  impeachment,  15;  vacancies 
in,  filled  by  special  election,  14; 
Speaker  of,  chosen  by  members, 
15;  originates  bills  for  raising 
revenue,  34 ;  influence  upon  treaty 
requiring  appropriation,  115; 
members  take  oath  to  support 
Constitution,  181;  participant  in 
insurrection  once  ineligible  for, 
247. 

Impairing  Obligations  of  Con- 
tracts.   See  Contracts. 

Impeachment,  House  of  Representa- 
tives has  sole  power  to  bring,  15; 
few  cases  of,  in  our  history,  15; 
of  President  Johnson,  16;  Senate 
has  sole  power  to  try,  21 ;  limita- 
tion of  punishment  for,  21,  22; 
who  are  subject  to,  129;  offences 
for  which,  proceedings  may  be 
brought,  129;  Congress  on  what 
is  impeachable  conduct,  129. 

Implied  Powers,  Act  creating  Federal 
Land  Banks  upheld,  49 ;  Congress 
authorized  to  make  its  expressed 
and,  effectual,  79 ;  clause  respect- 
ing, most  important  for  progress, 
79-81 ;  question  of,  arose  in 
Washington's  administration,  81; 


286 


Index 


Implied  Powers  (cont.) 

Articles  of  Confederation  withheld 
powers  not  "expressly  delegated", 
80;  Jefferson  questioned  power 
to  purchase  Louisiana,  80. 

Imposts,  Congress  has  power  to  lay 
and  collect,  43. 

Income  Tax,  Acts  of  Congress  of 
Civil  War  upheld,  11;  Act  of 
1894  invalid  for  lack  of  apportion- 
ment, 1 1 ;  held  to  be  direct  tax 
in  England  and  Canada,  1 1 ; 
Sixteenth  Amendment  removed 
necessity  of  apportionment,  12, 
251 ;  Act  of  1919  invalid  as  to 
Federal  judges'  salaries,  135,  252; 
Taney  protested  Civil  War  tax, 
135;  salary  of  President  not 
subject  to,  136. 

Insular  Cases,  Congress  prepares 
acquired  territory  for  Union,  72. 

Interstate    Commerce    Conmiission, 

52,  133. 
Iron-Clad  Oath,  86,  182. 

Jackson,  Andrew,  on  menace  of 
Congressional  appropriations,  45; 
vetoed  appropriation  bills  not  for 
general  welfare,  45;  asked  dis- 
charge from  prison  and  liability 
of  debtor,  59;  asked  Congress 
to  exclude  abolitionist  newspapers 
from  mail,  204;  bail  discussed 
for  assailant  of,  222. 

James  I,  of  England,  Hallam's 
comment  on  execution  of  Raleigh 
by,  151- 

Jefiferson,  Thomas,  opinion  on  ex- 
tent of  veto  power,  39 ;  with  Ham- 
ilton helped  locate  National  capital, 
78 ;  believed  amendment  necessary 
for  public  improvements,  80; 
questioned  constitutional  power 
to  purchase  Louisiana,  80;  Bill 
of  Attainder  in  Parliament  against, 
85 ;  favored  one  term  for  President 
but  served  two,  10 1 ;  elected  by 
House   of   Representatives,    106; 


introduced  written  messages  to 
Congress,  122;  his  action  in 
prosecution  of  Burr,  150;  worked 
for  religious  freedom  in  Virginia, 
198;  opposed  too  much  govern- 
ment at  Washington,  226. 

Jenks,  Edward,  on  decline  in  value 
of  English  money,  37. 

Jeopardy,  explanation  of  the  term, 
211 ;  accused  not  to  be  placed  in, 
twice,  211. 

Johnson,  Andrew,  controversy  with 
Congress  over  Reconstruction,  15 ; 
impeached  by  House  of  Represent- 
atives, 15;  immediate  cause  of 
impeachment,  16;  failure  to  con- 
vict, 16;  vetoed  Tenure  of  Ofl&ce 
Act,  16;  humorous  comment  on 
his  view  of  power,  17;  Christmas- 
day  pardon  for  those  in  Civil  War, 

113. 

Judges  (State),  and  treaty  as  su- 
preme law,  178;  bound  by  Na- 
tional Constitution,  Laws  and 
Treaties,  179;  Dicey  on  eflfect  of 
this  obligation,  181;  required  to 
take  oath  to  support  Constitution, 
182. 

Judicial  Department,  Hamilton  on 
duty  of  Federal  courts,  130; 
function  of  the  courts,  130 ;  Fiske 
on  importance  of  American  judi- 
ciary, 131 ;  judicial  power  vested 
in  Supreme  and  inferior  courts, 
131 ;  compensation  of  judges  not 
to  be  diminished,  133,  135 ;  term 
of  judges  during  good  behavior, 
133;  American  plan  of,  followed 
elsewhere,  134;  Lecky  on  status  of 
judges,  134;  terms  of  judges  in 
other  countries,  134;  income  tax 
invalid  as  to  salaries  of  judges, 
13s ;  court  acts  only  when  case  is 
brought,  136;  judicial  powers 
of,  136,  138,  139,  140,  141,  142, 
144 ;  restrictions  on  judicial  powers 
of,  137,  166-168,  228;  designed 
to  be  free  from  local  influence,  137 ; 


Index 


287 


Hamilton  on  relative  powers  of 
three  departments,  137;  Articles 
of  Confederation  provided  no 
judicial  system,  137;  United 
States  makes  general  use  of  its 
courts,  139;  Constitution  makes 
justiciable  questions  formerly  met 
by  force,  140,  141 ;  United 
States  removes  cases  from  State 
courts,  140;  Dicey's  opinion  of 
working  of,  180,  181.  See  also 
Courts  (Inferior) ;  Supreme 
Court. 
Jury,  trial  by,  demanded  in  Colonial 
Declaration  of  Rights  1765  and 
1774,  145;  trial  for  crimes  except 
impeachment  by,  145 ;  cannot 
be  superseded  by  military  court 
in  time  of  peace,  146;  defined, 
146;  in  civil  cases  involving  over 
twenty  dollars,  146,  221 ;  of  State 
and  district  where  crime  com- 
mitted, 147 ;  provision  for,  in  early 
State  constitutions,  146.  SeedXso 
Trial. 

Labor,  Contract  Labor  Law  of  1885 
referred  to,  6;  hours  of,  may  be 
limited,  239,  242 ;  laws  for  benefit 
of,  generally  upheld,  239,  240; 
minimum  wage  law  upheld,  240; 
State  may  employ  only  citizens 
of  United  States  if  desired,  240; 
length  of  working  day  for  women 
may  be  fixed,  242 ;  State  law  for- 
bidding test  of  union  membership 
held  void,  242;  aliens  cannot  be 
excluded  by  State  from  employ- 
ment, 243 ;  employment  of  children 
may  be  prohibited,  243 ;  safeguards 
on  machinery  and  semi-monthly 
wage  pa3Tnents  may  be  required, 
243;  payment  in  scrip  may  be 
forbidden,  243.  • 

Lands,  aliens  may  hold  ui  some 
States,  57.  See  also  Public 
Lands;   Western  Lands. 

Law,  the  study  of,  in  colonial  Amer- 


ica, xi;  how  enacted  in  United 
States,  38;  resolution  to  amend 
Constitution  n6t  a  law,  42;  to 
be  faithfully  executed  by  President, 
126;  Woodrow  Wilson  on  this 
power,  126. 

Lawyers,  in  the  Convention,  xi. 

Lecky,  W.  E.  H.,  on  Colonial  privi- 
leges, x;  on  bills  of  attainder  in 
America;  85;  on  the  status  of 
judges,  134;  praises  plan  of 
amending  Constitution,  172. 

Legal  Tender,  Act  of  Congress  sus- 
tained, 48,  61,  132;  the  "Green- 
back" Cases,  48;  paper  money  of 
Civil  War  made,  48;  power  to 
"emit  bills"  refused  by  Conven- 
tion, 48;  greenbacks  redeemed, 
49;  issue  of  paper  money  after 
Civil  War  upheld,  49 ;  State  may 
make  only  gold  and  silver,  91. 
See  also  Money. 

Legislative  Department,  all  powers 
vested  in  a  Congress,  8;  consists 
of  Senate  and  House  of  Repre- 
sentatives, 8;  two  branches  in- 
dispensably necessary,  8 ;  Monroe 
on  fundamental  importance  of,  8; 
one  house  under  Articles  of  Con- 
federation, 8;  Colonial  Declara- 
tion of  Rights  1774,  for  two  houses, 
195.    See  also  Congress. 

Letters  of  Marque  and  Reprisal, 
Congress  can  grant,  70. 

Liberty,  blessings  of,  one  purpose 
of  Constitution,  5;  not  to  be  de- 
prived of,  except  by  due  process 
of  law,  241 ;  labor  laws  not  denial 
of,  242 ;  what  is  included  in  term, 
242;  laws  prohibiting  employ- 
ment of  children  not  denial  of, 
243 ;  not  infringed  by  compulsory 
vaccination,  243. 

Life,  not  to  be  deprived  of,  by  Nation 
or  State  except  by  due  process  of 
law,  241. 

Liquors,  intoxicating.  Eighteenth 
Amendment  sustained,  254 ;  manu- 


288 


Index] 


Liquors,  intoxicating  {cont.) 
facture,    sale    and    transportation 
of,  prohibited,  254 ;  Congress  and 
States    have    concurrent    power 
over,  255. 

Lincoln,  Abraham,  declaration  re- 
garding the  Union,  3;  in  reaper 
patent  case,  66 ;  held  to  be  without 
power  to  suspend  habeas  corpus, 
83;  Congress  granted  power  to 
suspend  habeas  corpus,  83;  Bryce 
on  great  power  wielded  by,  100; 
extraordinary  aid  granted  by  Con- 
gress to,  in;  address  at  Gettys- 
burg, 193;  Emancipation  Procla- 
mation limited  to  seceded  States, 

233. 
Lotteries.    See  Post  Office. 
Louisiana  Purchase,  80. 

Macahlay,  T.  B.,  on  injustice  of 
bills  of  attdinder,  84. 

Madison,  James,  worked  on  Con- 
stitutional plan,  xi;  on  Congress 
fixing  own  salaries,  30;  against 
paper  money  in  Convention,  48; 
on  power  of  Congress  over  money 
and  coinage,  61;  on  effects  of 
paper  money,  91 ;  on  jealousy  of 
States  respecting  western  lands, 
166 ;  against  requirement  of  unan- 
imous ratification,  185;  journal 
of,  in  Convention,  188;  work  for 
religious  freedom,  198;  had  fear 
of  States  rather  than  of  Nation, 
227. 

Madison  Papers,  chief  source  of  in- 
formation of  Constitutional  Con- 
vention, 188. 

Magna  Charta,  money  raised  in 
violation  of,  36 ;  fixed  weights  and 
measures,  62;  forbade  excessive 
fines,,  222. 

Mail.    See  Post  Office. 

Mansfield,  Lord,  decision  in  case  of 
the  slave  Somerset,  94. 

Marshall,  John,  act  of  legislature 
contrary  to  constitution  void,  xv; 


powers  of  government  defined 
and  limited,  xv;  Beveridge's  life 
of,  cited,  132;  discussed  levying 
of  war  in  Burr  trial,  149 ;  applied 
requirement  of  two  witnesses  to 
treason,    150;    hanged   in   eflEigy, 

ISO- 
Massachusetts,  classic  statement  of 
American  division  of  goverimiental 
powers,  X. 
Message  of  President.    See  Presi- 
dent, The. 
Metric  System.    See  Weights  and 

Measures. 
Migratory  Birds,  178,  227. 
Militia,  Congress  provides  for  calling, 
76 ;  Articles  of  Confederation  re- 
quired each  State  to  maintain,  76 ; 
President's  authority  over,  limited, 
76;  Articles  of  Confederation 
permitted  Nation  to  appoint  some 
officers  of,  77;  Congress  provides 
for  uniform  training  and  arming 
of,  77;  kinds  of,  77;  States  re- 
serve appointment  of  officers  of, 
77;  President  commander  of, 
while  in  service  of  United  States, 
no;  right  to  bear  arms  not  to 
be  infringed,  206. 
Money,  bills  originate  in  House  of 
Representatives,  34;  in  English 
history  and  Civil  War,  36;  law 
in  other  countries  regarding,  37; 
depreciation  in  value  in  English 
history,  37;  Hamilton's  views  of, 
44;  Jackson  on  appropriation  of, 
45;  Monroe  and  Jackson  vetoes 
of  misuse  of,  45 ;  raised  only  for 
debts,  common  defence  and  general 
welfare,  45 ;  Congress  may  borrow, 
on  credit  of  Nation,  47,  50 ;  assent 
of  nine  States  necessary  to  borrow 
under  Articles,  48;  Greenback 
Cases  arose  under,  clause,  48; 
Legal-Tender  Cases  described,  48, 
49,  61 ;  Madison  opposed  paper, 
in  Convention,  48;  Congress  has 
power  to  com  and  regtdate  value 


Index 


289 


of,  60;  early  American,  consisted 
of  foreign  coins,  60;  Articles  of 
Confederation  allowed  States  to 
coin,  but  Congress  could  regulate 
value,  61 ;  necessity  of  Nation 
controlling  issue  of,  61;  counter- 
feiting punishable  by  Congress, 
62 ;  appropriation  of,  to  be  made, 
by  law,  88 ;  State  may  not  issue 
bills  of  credit  for  nor  coin,  90;  State 
may  make  only  gold  or  silver  legal 
tender,  91 ;  Madison  on  effects 
of  paper,  91.  See  also  Legal 
Tender. 
Monroe,  James,  praise  for  work  of 
Continental  Congress,  xiii;  on 
people  as  highest  authority,  i; 
fundamental  importance  of  Legis- 
lative Department,  8;  on  impor- 
tance of  taxing  power,  44 ;  vetoed 
appropriation  bill  as  not  for 
general  welfare,  45;  suggested 
commerce  clause,  51 ;  on  im- 
portance to  Nation  of  the  inferior 
courts,  68;  on  need  of  a  supreme 
law  of  the  land,  177;  on  most 
important  epoch  in  history,  190. 

National  Defence  Act  of  1916, 
77. 

Naturalization,  complaint  in  Declar- 
ation of  Independence  as  to  ob- 
struction to,  53 ;  Continental  Con- 
gress naturalized  all  after  Declara- 
tion, 53 ;  Congress  maintains  uni- 
form rule  of,  53 ;  Articles  of  Con- 
federation on  citizenship,  54 ;  doc- 
trine of  European  governments  on, 
54 ;  not  at  first  recognized  in  Europe, 
54 ;  Washington  recommended 
law  in  first  message,  54;  treaty 
with  England  in  1870  on,  55 ;  Ro- 
man citizenship  conferred  on  other 
peoples,  55;  accomplished  some- 
times by  treaties,  56 ;  when  certifi- 
cate of,  cancelled,  56,  57;  Grant 
asked  legislation  to  prevent  frauds 
in,  56 ;  requirements  for,  stated,  56 ; 


Act  of  Congress  respecting  fraud 
in  securing  certificate  of,  57. 

Navy,  Congress  provides,  maintains 
and  prescribes  rules  governing,  76 ; 
President  commander  of,  1 10. 

Negro,  the,  Fourteenth  Amendment 
for  him  but  also  includes  all 
persons,  235;  Civil  Rights  Act 
prohibiting  action  by  persons 
invalid,  244,  249;  denied  equal 
protection  when  excluded  by 
Homestead  law,  245;  State 
literacy  law  does  not  deny  equal 
protection  to,  245 ;  city  ordinance 
excluding,  from  block  occupied 
by  Whites  invalid,  246;  claims 
for  emancipated  slaves  prohibited, 
249 ;  right  to  vote  under  Fifteenth 
Amendment,  250.  See  also  Fif- 
teenth Amendment  ;  Fourteenth 
Amendment  ;  Thirteenth  Amend- 
ment. 

Neutrality,  saved  by  vote  of  Vice- 
President  Adams,  20 ;  advocated  by 
Washington  in  Farewell  Address, 
105;  French  minister's  interfer- 
ence with,  200. 

Nineteenth  Amendment.  See  Suf- 
frage;  Woman. 

Nobility.     See  Title  of  Nobility. 

Northwest  Territory,  created  under 
Articles  of  Confederation,  12; 
slavery  prohibited  in,  12,  232; 
States  voting  for,  13  ;  imprison- 
ment for  debt  allowed  in,  60; 
creation  of,  endorsed  by  First  Con- 
gress under  Constitution,  60. 

Oath,  of  President  on  taking  office, 
no ;  Senators,  Representatives  and 
all  National  and  State  officers 
bound  to  support  the  Constitution 
by,  181;  Taney  on  significance 
of,  required  by  Constitution,  182 ; 
iron-clad,  of  Civil  War  times,  182 ; 
test,  for  office  forbidden,  183; 
examples  of  early  test,  183. 

Oblivion,  Act  of,  of  1898,  248. 


^90 


Index 


Otis,  James,  on  unconstitutional 
Acts  of  Parliament,  loo ;  contested 
legality  of  Writs  of  Assistance,  209. 

Pardon,  President  may,  except  in 
cases  of  impeachment,  113;  Con- 
gress cannot  limit  power  of,  113; 
Christmas-day,  by  Johnson,  113. 

Patents,  Congress  grants,  to  inven- 
tors, 64 ;  Act  passed  by  First  Con- 
gress, 66;  celebrated  cases,  66; 
law  developed  by  Story,  66; 
Lincoln  in  reaper  case,  66;  right 
cannot  be  enlarged  by  patentee, 
67 ;  trade-mark  not  subject  to,  67. 

People,  the,  Monroe  on,  as  source  of 
power,  I ;  majority  feared  as  much 
as  Kings  by  the  Fathers,  viii; 
long  training  in  Colonial  self- 
government,  x;  their  educational 
advantages,  xi ;  named  in  Preamble 
as  makers  of  government,  i ;  or- 
dained the  Constitution,  i ;  elect 
all  principal  constitutional  officers 
in  United  States,  4;  rights  re- 
served by,  225;  fear  of  National 
power,  226. 

Petition,  Right  of.  Colonial  Declar- 
ation of  Rights  1765  on,  204; 
Congress  cannot  abridge,  204; 
contest  in  Van  Buren's  term  over, 
205;  abolitionist's  petitions  con- 
sidered unconstitutional,  205 ; 
English  Declaration  of  Rights 
1689  on,  205;  petitions  to  King 
treated  with  contempt,  205 ;  Con- 
gress without  such  judicial  power  as 
Parliament  had,  206;  petition  of 
English  Chartists  1839,  206. 
See  also  Assembly,  Right  of. 

Piracies,  Articles  of  Confederation 
provided  for  courts  of,  69 ;  defined 
and  punished  by  Congress,  69; 
efforts  of  European  governments 
to  suppress,  69 ;  Decatur  subdued 
Barbary,  69. 

Polk,  James  K.,  consulted  Senate 
in  advance  on  treaty,  116. 


Polygamy,  suppression  of,  not  a 
denial  of  religious  freedom,  198. 

Population  of  the  United  States, 
14. 

Ports,  no  preference  in  regulations 
of  commerce  or  revenue  for  one, 
over  another,  88;  ships  from,  of 
one  State  not  dutiable  in  another, 
88. 

Post  Offices  and  Post  Roads, 
Articles  of  Confederation  provided 
for,  63 ;  Congress  establishes,  63 ; 
early  history  of,  in  America,  63; 
Congress  may  exclude  disloyal 
newspapers  from,  64;  may  ex- 
clude lottery  advertisements  and 
obscene  literature  from,  64,  203; 
Roosevelt  on  excluding  anarchistic 
publications  from,  64;  Jackson 
desired  exclusion  of  abolitionist 
newspapers  from,  204. 

Powers,  division  of,  in  America 
stated,  X ;  of  Congress,  43 ;  implied, 
of  Congress,  79.  See  also  Courts 
(Interior  National);  Implied 
Powers;  President,  the;  Su- 
preme Court. 

Preamble,  its  institution  of  National 
government,  i ;  source  of  Henry's 
opposition,  i;  states  purposes 
for  which  new  government  formed, 
5 ;  confers  no  substa,ntive  power  on 
government,  7. 

President,  the,  signs  or  vetoes  bills, 
38;  and  orders  and  resolutions, 
42;  victories  as  commander  in 
chief  do  not  enlarge  domain,  71, 
72;  Cromwell  believed  executive 
necessary,  99;  executive  power 
of  United  States  vested  in,  99; 
Hamilton  on  need  of  strong  execu- 
tive, 98,  loi ;  lack  of,  weakness  of 
Articles  of  Confederation,  99; 
powers  of,  in  Legislative  and 
Judicial  Departments,  99;  term 
of  office  four  years,  99 ;  Woodrow 
Wilson  on  execution  of  the 
National  law,  99 ;  Bryce  on  power 


Index 


291 


of  Lincoln  as,  loo;  discussions 
in  Convention  as  to,  loo,  loi ; 
may  be  impeached,  loo,  129 ;  Chief 
Justice  presides  at  trial  of,  100; 
plural  executive  discussed  in  Con- 
vention, loi ;  resolution  in  Conven- 
tion for  one  term  for,  fails,  loi ; 
discussions  in  Convention  as  to 
term  for,  loi ;  third  terms  sought 
by  Grant  and  Roosevelt,  10 1 ; 
terms  in  other  countries,  102 ;  effect 
of  absence  from  country  in  other 
constitutions,  102  ;  election  of  102- 
106;  Convention  considered  title 
for,  102 ;  age,  nationality  and  resi- 
dence requirements  for,  106 ;  early 
exception  to  nationality  clause,  106 ; 
no  property  qualification  for,  107 ; 
succeeded  by  Vice-President  under 
certain  conditions,  107 ;  provisions 
for  succession  of,  in  case  of  vacancy, 
108;  to  receive  salary  at  stated 
times,  109;  salary  not  to  be  in- 
creased or  diminished  during  term, 
109;  salary  in  other  countries, 
109,  136;  succession  of,  in  Brazil, 
109 ;  commander  in  chief  of  army 
and  navy  and  of  militia  when  in 
actual  service,  no;  oath,  on 
taking  ofi&ce,  1 10 ;  no  other  emolu- 
ment than  salary  from  Nation  or 
State,  no;  Hamilton  on  stability 
of  salary,  1 10 ;  may  require  opinions 
of  cabinet,  112;  independent  of 
cabinet,  112 ;  has  pardoning  power 
except  in  cases  of  impeachment, 
113;  negotiates  treaties  with  con- 
sent of  Senate,  113,  115,  119;  con- 
sulting Senate  in  advance  on 
treaties,  116;  power  of  appoint- 
ment of  ofl&cers,  120 ;  Congress  may 
extend  power  of  appointment,  120; 
power  of  appointment  opposed 
in  Convention,  120;  messages  Jo 
Congress,  121,  122;  removes 
appointees  without  consent  of 
Senate,  121 ;  Tenure  of  Office  Act 
and,  121 ;  can  fill  vacancies  during 


recess  of  Senate,  121 ;  Congress  has 
right  to  call  for  information  from, 
122 ;  recommends  measures  to  Con- 
gress, 122;  may  call  extra  session 
of  either  or  both  Houses  of  Con- 
gress, 123;  may  adjourn  Congress 
when  Houses  disagree,  124;  re- 
ceives ambassadors  and  ministers, 
125 ;  must  execute  laws  faithfully, 
126;  commissions  all  oflicers  of 
United  States,  126;  has  no  power 
to  make  laws,  129 ;  cannot  be  inter- 
fered with  by  judiciary,  128; 
determines  when  domestic  violence 
warrants  intervention  in  State, 
168;  determines  when  militia 
should  be  called  out,  168;  amend- 
ments to  Constitution  may  be 
suggested  by,  173.    See  also  Veto. 

Press,  Freedom  of  the,  Congress  for- 
bidden to  abridge,  198 ;  definitions 
by  Hallam  and  Blackstone  of,  199 ; 
reports  of  debates  in  Parliament 
once  prohibited,  199;  Sedition 
Law  of  1798  explained,  200;  de- 
cisions under  Espionage  Act  of 
191 7,  201;  State  constitutions 
and,  201 ;  disloyal  papers  may  be 
excluded  from  mails,  202;  ad- 
vertisements of  lotteries  excluded 
from  mails,  203 ;  excluding  obscene 
matter  from  interstate  commerce 
or  mails  no  abridgment  of,  203; 
State  law,  in  World  War  upheld, 
203;  State  law  prohibiting  ad- 
vocacy overthrow  government  up- 
held, 203 ;  exclusion  of  Abolitionist 
papers  from  mails  requested  by 
Jackson,  204. 

Primaries,  Corrupt  Practices  Act 
of  1910  does  not  cover,  22. 

Privileges  and  Immunities,  citizen  en- 
titled to,  in  every  State,  157 ;  State 
forbidden  to  abridge  National, 
238 ;  guaranteed  against  State,  not 
individual  action,  239 ;  labor  laws 
upheld,  239;  abridged  by  State 
law    forbidding    use    of    Federal 


292 


Index 


Privileges  and  Immunities  (cont.) 
court,  240 ;  right  of  child  to  attend 
public  school  not  included  in,  240 ; 
corporation  not  a  citizen  entitled 
to,  241. 

Property,  eariy  qualification  of  voter 
the  ownership  of,  10;  not  to  be 
taken  without  due  process  of  law, 
213;  case  of  the  Lee  estate,  215, 
216;  just  compensation  when 
taken  for  public  use,  215;  Roman 
law  rule  for  taking  of,  215 ;  taking 
for  public  use  explained,  241. 

Public  Debt,  highest  amount  after 
Civil  War,  47 ;  after  World  War, 
48 ;  assumed  by  new  government 
on  adoption  of  Constitution,  176; 
Hamilton's  estimate  of,  176;  due 
to  Civil  War  made  obligatory  by 
Fourteenth  Amendment,  248;  of 
Confederate  States  not  to  be  paid, 
249- 

Public  Lands,  history  of  acquisition 
of,  163;  cession  of  western  lands 
beginning  of,  163;  Congress  has 
power  over,  165.  See  also 
Western  Lands. 

Punishment,  Cruel  and  Unusual, 
in  Blackstone's  time  for  treason, 
223;  not  to  be  inflicted,  223;  Bill 
of  Rights  of  Philippine  Islands 
forbids,  224;  cases  of,  arising  in 
United  States,  224;  Hallam's 
citation  of  instances  of,  224;  in 
relation  to  Chinese,  245. 

Quartering  Troops,  English  Peti- 
tion of  Rights  of  1628  on,  207; 
Act  of  Parliament  required  colon- 
ists to  quarter,  207;  Colonial 
Declaration  of  Rights  of  1774  on, 
207;  Boston  refused  quarters 
to  troops  of  Gage,  207;  Declar- 
ation of  Independence  complained 
of,  207;  in  time  of  war  as  pre- 
scribed by  law,  207;  consent  of 
owner  necessary  for,  in  time  of 
peace,  207.    See  also  Army. 


Railroad  Labor  Board,  52. 

Railroads,  control  of,  in  time  of 
war.  III. 

Raleigh,  Sir  Walter,  Hallam's 
opinion  of  execution  of,  151,  219; 
convicted  of  treason  on  written 
testimony,  219, 

Ratification :  of  Constitution,  when 
seceding  South  Carolina  repealed, 
171;  imanimous  vote  thought 
impossible  by  Madison,  185;  by 
Conventions,  185 ;  by  nine  States 
sufficient  to  establish,  185;  by 
North  Carolina  and  Rhode  Island 
after  government  started,  185; 
objections  urged  against,  186; 
Washington's  letter  and  recom- 
mendations on,  186;  copy  of 
Constitution  to  legislature  of  each 
State,  186;  Federalist  papers  in 
New  York  in  support  of,  187; 
opposed  in  several  States  by  strong 
men,  187;  Wilson  on  benefit  of 
contest  over,  188;  how  given  by 
the  original  States,  191.  Of 
Amendments,  by  legislatures  or 
conventions  in  three  fourths  of 
the  States,  170;  have  never  been 
ratified  by  conventions,  170;  not 
by  referendum,  171 ;  State  cannot 
withdraw,  171;  time  limit  for 
ratification  of  Eighteenth  amend- 
ment and  reasons  for,  256;  vote 
of  States  on  suffrage  amendment, 
258;  table  showing  time  each 
amendment  was  pending,  259; 
desired  amendments  easily  ob- 
tained, 261. 

Reconstruction  Acts,  16,  40. 

Records,  Act  of  Congress  authen- 
ticating, 157. 

Referendum,  amendments  cannot 
be  ratified  by,  171;  nor  can  judi- 
cial decisions  be  reviewed  by,  243. 

Religious  Freedom,  no  test  as  quali- 
fication for  office,  183;  oaths  re- 
quired in  some  States,  183;  Con- 
gress forbidden  to  interfere  with, 


Index 


293 


197;  intolerance  caused  emigra- 
tion to  America  in  search  of,  197 ; 
tests  in  England,  197 ;  not  granted 
by  some  of  the  Colonies,  197; 
clause  failed  in  Convention,  198; 
Senate  once  rejected  First  Amend- 
ment for,  198;  Madison  vetoed 
bills  as  against,  198;  suppression 
of  polygamy  not  denial  of,  198; 
Virginia  declared  interference  with, 
as  against  natural  right,  198. 

Removal  of  Ofl&cers,  consent  of 
Senate  not  requisite  for,  16. 

Representatives.  See  House  of 
Representatives. 

Republican  Form  of  Government, 
166-168. 

Resumption    of    Specie    Payments, 

49. 

Rhode  Island,  not  represented  in 
Philadelphia  Convention  of  1787, 
xiv;  ratified  Constitution  after 
inauguration  of  government,  185. 

Roosevelt,  Theodore,  on  excluding 
anarchistic  publications  from  the 
mails,  64;  unsuccessful  attempt 
for  a  third  term,  10 1 ;  declined  to 
furnish  information  to  the  Senate, 


"Salary  Grab",  30. 

School,  privilege  to  attend,  does 
not  spring  from  Fourteenth 
Amendment,  240;  State  may  ex- 
clude secret  societies  from,  240; 
separate,  for  Chinese  not  illegal, 
245. 

Searches  and  Seizures,  history  of 
the  clause  and  cases  and  decisions 
thereunder,  208-210. 

Self-incrimination,  212. 

Senate,  the,  Bryce's  opinion  of,  17; 
membership  of,  17;  struggle  in 
Convention  over  State  equality 
in,  17;  countries  following  Amer- 
ican plan  of,  18 ;  State  legislatures 
originally  chose  members  of,  18; 
members  now  chosen  by  direct 


vote,  18,  252,  253;  term  of  six 
years,  18;  vacancies  temporarily 
filled  by  Governor,  19;  qualifica- 
tions as  to  age  and  residence  for 
members  of,  19;  one  third  of 
membership  changes  every  two 
years,  19 ;  Vice-President  president 
of,  19;  president  has  no  vote  ex- 
cept in  case  of  tie,  19,  20;  chooses 
own  ofl&cers  including  president 
pro  tempore,  21 ;  sole  power  to 
try  impeachments,  21;  Chief  Jus- 
tice presides  over,  at  trial  of  the 
President,  21 ;  two-thirds  vote  of 
those  present  necessary  to  con- 
vict, 21;  election  to,  in  control 
of  Congress,  22;  confirms  or  re- 
jects treaty  made  by  President, 
113;  President  has  consulted, 
in  advance  on  treaties,  116; 
objected  to  Senators  attend- 
ing Peace  Conference,  117;  re- 
jection of  treaty  by,  not  objec- 
tionable to  other  country,  118; 
Treaty  of  Versailles  rejected  by, 
119;  confirms  or  rejects  Presi- 
dent's appointments,  120;  Cleve- 
land on  threat  of,  120 ;  consent  of, 
not  necessary  to  removals  by 
President,  121;  amendment  can- 
not deprive  State  of  equal  suf- 
frage in,  without  consent  of  State, 
174;  same  rule  in  Brazil,  175; 
members  of,  take  oath  to  support 
Constitution,  181;  participant  in 
insurrection  once  ineligible  for, 
247. 

Seventeenth  Amendment,  election 
of  Senators  changed  from  legis- 
lature to  direct  vote,  252.  See 
also  Elections. 

Sixteenth  Amendment.  See  Income 
Tax. 

Slavery,  compromises  regarding,  in 
Constitution,  12,  82;  prohibited 
in  Northwest  Territory  while 
compromises  making,  12,  232; 
three  fifths  of  slaves  counted  for 


294 


Index 


Slavery  (cont.) 
Representation,  12;  Abolition 
party  strong  in  South,  13;  dying 
at  time  of  Convention,  13;  re- 
vived by  cotton  gin  and  spinning 
machinery,  13 ;  Northwest  Terri- 
tory ceded  by  Virginia  to  be  free 
from,  13;  importation  of  slaves 
not  to  be  prohibited  before 
1808,  82;  fugitive  from  service 
to  be  surrendered,  161 ;  Lord 
Mansfield's  dictum  on,  161 ;  fugi- 
tive laws  of  1793  and  1850,  162; 
not  affected  by  amendments  prior 
to  1808, 174;  right  to  petition  for 
abolition  of,  contested  in  Van 
Buren's  term,  205;  abolished  by 
Thirteenth  Amendment  1865,  232 ; 
not  mentioned  until  Thirteenth 
Amendment,  232 ;  previously  abol- 
ished in  Territories  by  Congress, 
233;  examples  of  void  legislation 
by  Congress  and  by  States,  233, 
234;  Federal  Court  on  ejffect  of 
Amendment,  233;  slave  held  not 
to  be  citizen  in  Dred  Scott  Case, 
237. 

South  and  Central  America,  Bryce 
says  our  Constitution  adopted  by, 
ix. 

Speech,  Freedom  of.  Congress  forbid- 
den to  abridge,  198;  not  abridged 
by  prohibition  of  addresses  in 
public  parks,  201.  See  also 
Press,  Freedom  of. 

Stanton,  Edwin  M.,  removed  as 
Secretary  of  War  by  Johnson,  16 ; 
appointed  to  Supreme  Court  but 
died  before  assuming  oflSce,  152. 

State  Comity  and  Rights,  States 
sovereign  in  non-National  affairs, 
xii ;  formerly  State,  not  citizen,  in 
contact  with  Nation,  3;  reserved 
right  to  appoint  militia  officers,  77 ; 
ports  of  one  State  not  to  be  pre- 
ferred over  those  of  other  States, 
88;  no  duty  on  shipping  to  be 
imposed  by  States,  96 ;  each  State 


gives  full  faith  to  acts  and  records 
of  others,  156;  but  not  against 
its  public  policy,  157;  citizens  of 
each  State  entitled  to  all  privi- 
leges in  other  States,  157 ;  division 
of  State  prohibited,  164,  165; 
amendment  cannot  deprive  of 
equal  suffrage  in  Senate  without 
consent,  174;  States  or  people 
reserve  powers  not  delegated  to 
Nation,  225-227;  Jefferson's  fear 
of  National  domination  over 
States,  226;  not  suable  in  court 
under  Eleventh  Amendment,  228. 
See  also  States. 

State  Judges.    See  Judges,  State. 

States,  influence  of,  on  National 
opinion,  xii;  Calhoun  on  rights 
and  powers  of,  3;  Lincoln  on 
place  of,  in  Union,  3;  Webster 
on  supremacy  of  National  power, 
3;  may  prescribe  time  of  elec- 
tions for  Senate  and  House,  22; 
Harding  says  tendency  of,  to  evade 
duty,  46 ;  aided  in  World  War  by 
legislation,  75;  ports  of  one  not 
to  be  preferred  over  those  of  other, 
88;  powers  denied  to  the,  90, 
91,  96;  controversies  between, 
tried  by  Supreme  Court,  140, 
141 ;  cannot  prevent  removal  of 
proper  case  to  National  court, 
142,  143;  Articles  of  Confeder- 
ation provided  for  admission  of 
Canada,  162;  admission  of,  pro- 
vided for,  162;  Nation  to  protect 
from  invasion,  166;  cannot  be 
formed  from  other  State  without 
consent  of  latter,  164;  apply  to 
Nation  for  protection,  166, 169 ;  re- 
publican form  of  government  guar- 
anteed to,  166-168 ;  Nation  to  pro- 
tect, from  domestic  violence,  168; 
legislatures  of,  have  not  yet  pro- 
posed amendment,  1 70 ;  have  never 
ratified  amendments  by  conven- 
tion, 170;  cannot  withdraw  rati- 
fication of  amendment,  171;  not 


Index 


295 


to  be  deprived  of  equal  suffrage 
in  Senate,  175;  bound  by  treaty 
as  supreme  law,  176;  bound  to 
submit  to  courts,  179 ;  officers  take 
oath  to  support  National  Con- 
stitution, 181 ;  may  restrict  bear- 
ing of  arms,  206 ;  reserved  powers 
except  when  granted,  226;  Su- 
preme Court  on  reserved  powers 
of,  226 ;  not  suable  under  Eleventh 
Amendment,  228 ;  may  not  abridge 
privileges  and  immunities  of 
citizens  of  United  States,  238; 
cannot  disfavor  alien  labor,  243; 
representation  of,  in  House  may 
be  reduced,  247.  See  also  State 
ComTY  AND  Rights. 
Story,  Joseph,  applied  and  developed 
the  copyright  and  patent  laws,  66 ; 
comment    on   dependent   judges, 

134. 

Suffrage,  equal,  of  States  in  Senate 
protected,  174;  not  granted  to 
women  by  Fourteenth  Amend- 
ment, 238 ;  Fifteenth  Amendment 
removed  "white"  from  State 
constitutions,  250;  secured  to 
negro  by  Fifteenth  Amendment, 
250 ;  "  Grandfather's  clauses  "  held 
violative  of  Fifteenth  Amendment, 
251 ;  granted  to  women  by  Nine- 
teenth Amendment,  256;  his- 
tory of  woman,  256,  257 ;  vote  of 
ratification  of  Nineteenth  Amend- 
ment, 258.  See  also  Elections; 
Women. 

Supreme  Court,  of  the  United  States, 
insular  cases  explained  by,  71; 
judges  of,  appointed  by  President 
and  confirmed  by  Senate,  120; 
no  jurisdiction  to  enjom  President 
from  executing  laws,  128;  judges 

,  subject  to  impeachment,  129; 
Fiske  on  importance  of  such  courtj 
131 ;  First  Congress  provided  for, 
of  six,  131;  changes  in  number 
of  judges  of,  131,  132;  judicial 
power  of  Nation  vested  in,  and 


in  inferior  courts,  131 ;  practically 
abolished  for  one  year  in  Jefferson's 
term,  132;  term  of  judges  of, 
during  good  behavior,  133 ;  salary 
of  judges  cannot  be  diminished, 
133;  American  plan  of  appoint- 
ment to,  in  other  countries,  134; 
Colonial  Declaration  of  Rights  on 
salaries  for,  134;  Declaration  of 
Independence  on  tenure  of  judicial 
office,  134;  income  tax  on  salary 
of  judge  of,  invalid,  135 ;  originjil 
jurisdiction  in  cases  affecting  am- 
bassadors, ministers,  consuls  and 
other  foreign  officers,  144;  has 
appellate  jurisdiction  in  all  but 
two  classes  of  cases,  145;  Aus- 
tralian, follows  our  constitutional 
doctrine,  145;  Canadian,  not 
court  of  last  resort,  145 ;  on  need 
of  constitutional  Ihnitations  even 
in  time  of  war,  146 ;  Civil  War  de- 
cisions of,  were  for  Union,  154, 
237;  decisions  of,  upholding  Es- 
pionage Act  of  191 7,  201;  de- 
cisions on  search  and  seizure,  208, 
209;  on  accused  being  witness 
against  self,  209;  on  need  of 
Fourteenth  Amendment,  235 ;  held 
State  citizenship  not  changed  by 
Fourteenth  Amendment,  236,  238 ; 
Dred  Scott  decision,  237. 
Supreme  Law  of  the  Land,  cannot  be 
transcended  even  in  time  of  war, 
86;  Woodrow  Wilson  on,  126; 
and  Australian  constitution,  136; 
change  made  by  Nineteenth 
Amendment  in  State  laws,  149; 
what  constitutes  the,  176;  amend- 
ments and  decisions  illustrating 
the,  177;  Cooley  on  legislator's 
duty  to  observe,  177;  Monroe 
on  need  of,  against  States,  177; 
treaty  supersedes  State  authority, 
178;  judges  in  every  State  boimd 
by,  179;  laws  to  contrary  of  no 
effect,  179;  Taney's  statement 
as  to  state  pride  and,  179 ;  Dice/s 


296 


Index 


Supreme  Law  of  the  Land  (cont.) 
praise  of  system,  i8o;  doctrine 
applied  in  case  of  Lee  estate,  216; 
examples  of  operation  of,  216; 
changes  made  by  Fourteenth 
Amendment  in  State  constitutions 
limiting  citizenship,  236;  change 
made  by  Fifteenth  Amendment 
in  State  constitutions  limiting 
voting,  250. 

Taft,  William  Howard,  his  ap- 
pointment of  Knox  as  Secretary 
of  State  validated  by  Congress,  33. 

Taney,  Roger  B.,  held  that  Lincoln 
was  powerless  to  suspend  habeas 
corpus,  83;  protested  levy  of 
income  tax  on  judges*  salaries, 
13s;  stated  that  State  pride  not 
offended  by  National  law  suprem- 
acy, 179 ;  said  States  bound  them- 
selves by  Constitution  to  trial 
in  courts,  182. 

Tax,  direct,  apportioned  among 
States  on  population,  11,  12,  87; 
applied  to  lands  and  slaves,  11; 
confusion  as  to  term  "direct",  11 ; 
no,  without  consent  essential  to 
freedom,  34 ;  Colonial  Declaration 
of  Rights  1765  and  1774  on,  35; 
English  history  on  raising  revenue, 
36;  Congress  has  power  to  lay 
and  collect,  43 ;  power  to  lay,  one 
of  chief  reasons  for  adoption  of 
Constitution,  43;  Stamp  Act 
preceded  by  oppressive  laws,  44; 
for  debts,  common  defence  and 
general  welfare  only,  45 ;  must  be 
uniform  throughout  country,  46; 
authorized  on  importation  of 
slaves,  82;  Hamilton  favored 
capitation,  87;  on  exports  for- 
bidden, 87,  88;  on  ships  not  to 
be  laid  by  States,  96 ;  on  commerce 
not  to  be  laid  by  States,  96.  See 
also  L^coME  Tax. 

Tenure  of  Office  Act,  1867,  passed 
over  Johnson's  veto,  16 ;  violation 


of  long-standing  practice,  16; 
Grant  and  Hayes  requested  repeal 
of,  16;  Cleveland  refused  to  obey, 
16,  120;  repealed  in  Cleveland's 
term,  17,  121. 

Thirteenth  Amendment,  examples 
of  violation  of,  233,  234;  found 
to  be  inadequate,  235.  See  also 
Slavery. 

Tilden,  Samuel  J.,  controversy  in 
1876-1877  over  vote  for,  230. 

Titles  of  Nobility,  not  to  be  granted 
by  United  States,  89 ;  amendment 
fixing  penalty  for,  failed  of  adop- 
tion, 90;  questions  that  have 
arisen  regarding,  90 ;  under  Colo- 
nial charters,  90;  State  shall  not 
grant,  96 ;  granted  in  Canada,  96. 

Transportation  Act  of  1920,  52. 

Treason,  President  and  other  officers 
may  be  impeached  for,  129; 
cruel  punishment  for,  in  Black- 
stone's  time,  149;  Hallanv«ren- 
tions  cruel  punishment  for,  149; 
defined  in  Constitution  and  cannot 
be  extended,  149;  Parliament 
has  always  defined,  149;  what 
was  formerly,  in  England  with 
death  penalty,  149;  trial  of  Burr 
for,  149 ;  President  Wilson's  proc- 
lamation on,  150;  Congress  has 
power  to  prescribe  penalty  for, 
151 ;  conviction  requires  con- 
fession or  evidence  of  two  wit- 
nesses, 151;  English  Treason- 
Felony  Act  of  1848,  151;  may  be 
committed  under  State  consti- 
tution or  law,  151 ;  Raleigh 
convicted  on  written  testimony 
and  executed  for,  151,  219;  Con- 
gress prescribes  punishment  for, 
but  no  attainder  beyond  life  of 
culprit,  152;  two  witnesses  rp-' 
quired  by  law  of  Edward  VI,  219 ; 
written  testimony  once  received 
in  England,  219;  Jefferson  Davis' 
defence  to  charge  of,  248. 

Treaty,  may  accomplish  naturaliza- 


Index 


«97 


tion,  56;  State  shall  not  enter 
into,  90;  President  makes,  with 
consent  of  Senate,  113;  discussion 
on,  in  Convention,  114;  Hamilton 
on  governing  principle  of,  114; 
under  Articles  of  Confederation, 
114;  House  of  Representatives 
may  refuse  appropriation  to  carry 
out,  115;  discussion  of  important, 
115;  may  be  abrogated  by  Con- 
gress, IIS ;  President  has  consulted 
Senate  before  making,  116;  Sena- 
tors participating  in  making  of ,  1 1 7 ; 
Hague  Tribunal,  history  and  pur- 
pose of,  118;  affecting  our  con- 
stitutional system  generally  re- 
jected, 118;  no  ground  for  com- 
plaint by  other  country  for  re- 
jection of,  118;  the  Treaty  of 
Versailles,  iig;  supreme  law  of 
the  land  binding  State,  178. 
Trial,  for  all  crimes  must  be  by  jury, 
145;  Colonial  Declaration  of 
Rights  1774  and  Declaration  of 
Independence  complained  of, 
abroad,  147;  must  be  in  State 
where  crime  was  coromitted,  147; 
attempts  to  take  from  State  for, 
148;  two  witnesses  or  confession 
in,  for  treason,  149,  151 ;  indict- 
ment by  grand  jury  necessary  for, 
except  in  war  service,  210;  ac- 
cused not  to  be  put  in  jeopardy 
twice,  211 ;  accused  not  to  be  wit- 
ness against  self  at,  212,  213; 
accused  must  have  speedy  public, 
216;  by  jury  where  crime  com- 
mitted, 216;  definition  of  speedy, 
217;  imprisonment  without  charge 
or,  in  England,  217 ;  accused  must 
be  informed  of  charge  against  him, 
218;  decision  on  invalid  charge, 
218;  accused  must  be  confronted 
by  witnesses,  219;  the  rule  Ih 
Rome,  219;  written  testimony  in 
England,  219;  dying  declarations 
admissible  at,  220;  when  record  of 
former,  admissible,  220;  accused 


to  have  process  for  witneeses,  and 
counsel,  220.    See  also  Jury. 

Union,  the,  leading  opinion  on, 
2-4;  secession  of  southern  States 
from,  3;  Civil  War  necessary  to 
preservation  of,  3;  made  in- 
dissoluble by  constitutions  of 
Australia  and  Brazil,  4;  upheld 
during  Civil  War  by  Supreme 
Court,  154,  237. 

United  States,  supreme  in  National 
and  foreign  affairs,  xii ;  dual  form 
of  government  of,  contributes  to 
progress,  xii;  makes  general  use 
of  all  its  courts,  139,  140;  not 
suable  except  by  own  consent,  139 ; 
guarantees  republican  form  of 
government  to  State,  166;  must 
protect  State  from  invasion  and 
domestic  violence,  166,  168,  169; 
assumed  debts  of  former  govern- 
ment, 176;  powers  of,  limited  to 
Constitutional  grant,  225,  226; 
certain  powers  reserved  to  people 
or  States,  225,  226. 

Van  Buren,  Martin,  contest  over 
right  to  petition  during  his  term, 
205. 

Veto,  President  has  power  of,  38; 
Congress  may  repass  by  two- 
thirds  vote,  38 ;  Colonial  governors 
had  power  of,  39;  Jefferson's 
views  of  extent  of  power  of,  39; 
governors  and  mayors  in  United 
States  have  power  of,  39 ;  theories 
regarding  extent  of  power  of,  39; 
Hamilton's  favorable  opinion  of, 
40;  history  of  Presidential  use 
of,  40-46;  Washington's  first  use 
of,  40;  Declaration  of  Indepen- 
dence on  King's,  41;  English 
sovereign  no  longer  has,  41 ;  prac- 
tice adopted  in  other  countries, 
41;  orders  and  resolutions  sub- 
ject to,  4^;  resolution  to  amend 
Constitution  not  subject  to,  42. 


298 


Index 


Vice-President,  presides  over  Senate 
and  has  deciding  vote,  19;  ex- 
amples of  importance  of  deciding 
vote  of,  20;  admitted  to  Cabinet 
councils  by  Harding,  21 ;  succeeds 
President  under  certain  conditions, 
107 ;  subject  to  impeachment,  129. 

Vote.    See  Citizens. 

War,  Articles  of  Confederation  gave 
Congress  power,  70;  declared  by 
Congress  under  Constitution,  70; 
history  of  clause  in  Convention,  70 ; 
declaration  which  began  World 
War,  70;  letters  of  marque  and 
reprisal  issued  by  Congress,  71, 
73;  reasons  for  conferring  power 
to  make,  71,  72;  declaration  of, 
by  United  States  against  Germany, 
72,  73 ;  State  shall  not  engage  in, 
unless  invaded,  96. 

Washington,  City  of,  how  choice  of 
site  determined,  78;  provision 
made  for  seat  of  government,  78. 
See  also  District  of  Columbia. 

Washington,  George,  on  enlighten- 
ment of  public  opinion,  vii ;  recom- 
mended revision  of  Articles  of 
Confederation,  xiii;  presided  over 
Constitutional  Convention,  xiv ; 
views  of  government,  2;  laid 
comer-stone  of  National  Capitol, 
78;  consulted  Senate  in  advance 
on  treaty,  116;  oral  messages  to 
Congress,  122;  views  on  amend- 
ments, 172;  letter  to  Congress 
with  copy  of  new  Constitution, 
186 ;  reference  to  compromises,  186. 

Webster,  Daniel,  on  Supreme  Court 
as  expounder  of  National  powers, 
3;  in  Dartmouth  College  Case, 
94;  on  disregard  of  fugitive  slave 
laws,  162. 

Webster,  Pelatiah,  his  plan  of  1783 
probably  groundwork  of  those  in 
Convention,  xi. 


Weights  and  Measures,  61,  62. 

Western  lands,  delayed  adoption  of 
Articles  of  Confederation,  xiii, 
163;  ceded  to  Union  by  Virginia 
and  others,  163;  Madison  on 
jealousy  respecting,  166;  ceded 
by  North  Carolina  and  Georgia 
after  adoption  of  Constitution, 
166.    See  also  Public  Lands. 

West  Virginia,  how  separated  from 
Virginia,  164. 

Wilson,  James,  principle  of  Four- 
teenth Amendment  anticipated 
by,  in  Convention,  4;  first  ex- 
plained duties  owing  to  Nation 
and  State,  4;  favored  direct  elec- 
tion of  Senators  by  people,  18; 
Justice  of  the  Supreme  Court,  19 ; 
favored  election  of  President  by 
direct  vote  of  people,  102. 

Wilson,  Woodrow,  on  importance 
of  Chief  Executive,  99;  powers 
conferred  on,  by  Congress  in 
World  War,  loi,  in;  dismissed 
Austrian  Ambassador,  125;  on 
duty  of  President  to  execute  the 
laws,  126;  on  supreme  law  of  the 
Nation,  126;  proclamation  on 
treason,  150;  on  benefit  of  con- 
troversy over  ratification  of  Con- 
stitution, 188. 

Woman,  forfeits  citizenship  by 
marrying  alien,  238;  Fourteenth 
Amendment  did  not  grant  suffrage 
to,  238 ;  hours  of  day's  labor  may 
be  limited  for,  242;  Nineteenth 
Amendment  granted  suffrage  to, 
256;  ratification  of  the  Amend- 
ment, 258. 

World  War,  the,  vast  powers  of 
President  during,  loi,  in; 
Liberty  Bonds  and,  5;  raising 
and  equipment  of  army,  75;  and 
the  Food  Control  Act,  in,  218; 
Trading  with  the  Enemy  Act,  ni ; 
War  Finance  Corporation,  in. 


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